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He arotake i te āheinga ki ngā rawa a te tangata ka mate ana. Review of succession law: rights to a person's property on death [2021] NZLCR 145
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He arotake i te āheinga ki ngā rawa a te tangata ka mate ana. Review of succession law: rights to a person's property on
death [2021] NZLCR 145 (15 December 2021)
Last Updated: 9 January 2022
Whiringa-ā-rangi | November 2021
Te Whanganui-a-Tara, Aotearoa
Wellington, New Zealand
![A picture containing logoDescription automatically generated](2021_14500.png)
Pūrongo | Report 145
He
arotake i te āheinga ki ngā rawa a te tangata ka mate ana
Review
of succession law: rights to a person’s property on death
![A picture containing logoDescription automatically generated](2021_14501.png)
Te Aka Matua o te Ture | Law Commission is an independent, publicly funded,
central advisory body established by statute to undertake
the systematic review,
reform and development of the law of Aotearoa New Zealand. Its purpose is to
help achieve law that is just,
principled and accessible and that reflects the
values and aspirations of the people of Aotearoa New Zealand.
Te Aka Matua in the Commission’s Māori name refers to the parent
vine that Tāwhaki used to climb up to the heavens.
At the foot of the
ascent, he and his brother Karihi find their grandmother Whaitiri, who guards
the vines that form the pathway
into the sky. Karihi tries to climb the vines
first but makes the error of climbing up the aka taepa or hanging vine. He is
blown
violently around by the winds of heaven and falls to his death. Following
Whaitiri’s advice, Tāwhaki climbs the aka matua
or parent vine,
reaches the heavens and receives the three baskets of knowledge.
Kia whanake ngā ture o Aotearoa mā te arotake motuhake
Better law for Aotearoa New Zealand through independent
review
1000B1000B1000B
The Commissioners are:
1001B1001B1001BAmokura Kawharu – Tumu Whakarae | President
1002B1002B1002BHelen McQueen – Tumu Whakarae Tuarua | Deputy President
1003B1003B1003BGeof Shirtcliffe – Kaikōmihana | Commissioner
The Hon Justice Christian Whata – Kaikōmihana | Commissioner
The Māori language version of this Report’s title was developed
for Te Aka Matua o te Ture | Law Commission by Kiwa Hammond
and Maakere Edwards,
of Aatea Solutions Limited. The title was finalised in conjunction with the
Commission’s Māori Liaison
Committee.
Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te
whakarārangi o tēnei pukapuka.
A catalogue record for this title is available from the National Library of
New Zealand.
ISBN 978-0-9951291-4-6 (Print)
ISBN 978-0-9951291-3-9 (Online)
ISSN 0113-2334 (Print)
ISSN 1177-6196 (Online)
This title may be cited as NZLC R145. This title is available on the internet
at the website of Te Aka Matua o te Ture | Law Commission:
www.lawcom.govt.nz
Copyright © 2021 Te Aka Matua o te Ture | Law Commission.
![A picture containing logoDescription automatically generated](2021_14502.png)
This work is licensed under the Creative Commons Attribution 4.0
International licence. In essence, you are free to copy, distribute
and adapt
the work, as long as you attribute the work to Te Aka Matua o te Ture | Law
Commission and abide by other licence terms.
To view a copy of this licence,
visit https://creativecommons.org/licenses/by/4.0
|
|
Tumu Whakarae | President
Amokura Kawharu
Kaikōmihana | Commissioners
Helen McQueen
Geof Shirtcliffe
The Hon Justice Christian Whata
|
Hon Kris Faafoi
Minister Responsible for the Law Commission
Parliament Buildings
WELLINGTON
|
17 November 2021
|
|
Tēnā koe Minister
|
|
NZLC R145 – He arotake i te āheinga ki ngā rewa a te
tangata ka mate ana | Review of Succession Law: Rights to a person’s
property on death
I am pleased to submit to you the above report under section 16 of the Law
Commission Act 1985.
Nāku noa, nā
![2021_14504.png](2021_14504.png)
Amokura Kawharu
Tumu Whakarae | President
![2021_14505.png](2021_14505.png)
Foreword
This Report completes a significant body of reform work Te Aka Matua o te Ture |
Law Commission has undertaken regarding family property
law in Aotearoa New
Zealand.
In 2019, the Commission completed a review of the Property (Relationships) Act
1976. That review was immediately followed by this
Review of Succession Law. The
former looked at how couples should divide their property when a relationship
ends on separation. The
Review of Succession Law examines the rights relating to
the property of someone who dies.
These reviews have required us to examine how conventional principles of
property law should engage with the fluid and often difficult
realities of life
when families transition through a separation or bereavement. They have also
provided an opportunity for us to
consider ngā tikanga Māori and how
they relate to state law. Whakapapa, whanaungatanga, mana, and aroha, for
example, are
at the centre of whānau life.
It is clear that succession law, much of it drafted generations ago, requires
reform. The law as it is no longer reflects the diversity
of family
relationships in Aotearoa New Zealand. Nor does it reflect contemporary
understandings of te Tiriti o Waitangi | the Treaty
of Waitangi.
This Report concludes that in the context of succession, the Crown’s
kāwanatanga responsibilities under te Tiriti require
weaving new succession
law that reflects tikanga Māori and other values shared by New Zealanders.
Contemplating the contribution
of tikanga Māori to the development of state
law is a necessary aspect of the law reform exercise and, we think, is
consistent
with the ongoing evolution of values and attitudes in Aotearoa New
Zealand. In recommending reform, the Commission has taken this
approach as far
as we think is currently possible in light of constraints posed by the pervasive
nature of aspects of state law.
We also conclude that, given te Tiriti, tikanga
Māori should continue to govern succession to taonga.
We recommend that a new Inheritance (Claims Against Estates) Act should be
introduced as the principal source of law applying to
entitlements and claims
against an estate. Alongside this, there should be clear rules for distributing
an intestate estate that
replace the current rules in the Administration Act
1969.
In developing our recommendations, we have been mindful that the law should be
as easy to navigate as possible for those who wish
to understand their rights
and obligations and should promote efficient and effective dispute resolution.
Given the diversity of
families and the variety of issues that can arise,
property law concepts and judicial discretion must be applied in some instances.
Nevertheless, many of our recommendations are to support parties to reach their
own resolution with the support they need to understand
their rights and
obligations. We have emphasised facilitating resolution by tikanga Māori
for those wishing to exercise this
option.
We are grateful for the views of all those who have engaged with us as we have
asked afresh what our law should be. We are confident
that our recommendations
will lay the foundations for better succession law for Aotearoa New Zealand.
![2021_14506.png](2021_14506.png)
Amokura Kawharu
Tumu Whakarae | President
Acknowledgements
Te Aka Matua o te Ture | Law Commission gratefully acknowledges the
contributions of all who have helped us in this review. Since
the start of the
project in 2019, we have received invaluable assistance from many individuals
and organisations. We acknowledged
these contributions in the Issues Paper
published in April 2020.
We acknowledge again the generous contribution to the review made by our Expert
Advisory Group. Members of the Group shared their
expertise on the issues
arising from current succession law and engaged in rigorous discussion of our
preliminary policy proposals.
Members of the Group were Bill Patterson,
Patterson Hopkins; Greg Kelly, Greg Kelly Law; Mānia Hope, Barrister;
Professor Emerita
Nicola Peart, University of Otago; and Theresa Donnelly,
Perpetual Guardian.
We thank Jack Wass, Barrister, and Dr Maria Hook, University of Otago, for
testing with us our reform proposals on cross border matters.
We are also
grateful to Jeremy Johnson, Barrister, and Stephen McCarthy QC, for their
helpful interrogation of our approach to contribution
claims.
We acknowledge the individuals who have engaged with us to share an ao
Māori perspective on succession. We are grateful to those
tikanga and legal
experts who attended and contributed to wānanga on the tikanga relevant to
succession. We also thank Tai Ahu
(Waikato-Tainui, Ngāti Kahu (Te Paatu))
for assisting us in our understanding of tikanga and succession as we prepared
this
report.
We acknowledge and appreciate the ongoing support and guidance from the
Māori Liaison Committee to the Commission.
Finally, we thank the individuals and organisations who kindly shared their
expertise and experiences with us through taking the
time to make a submission
on the Issues Paper or consultation website.
We emphasise nevertheless that the views expressed in this report are those of
the Commission and not necessarily those of the people
who have helped us.
Nō reira, ko tēnei mātou e mihi nei ki a koutou, kua whai wā
ki te āwhina i a mātou. Tēnā
koutou, tēnā koutou,
tēnā koutou katoa.
The Commissioner responsible for this project is Helen McQueen. The legal and
policy advisers who have worked on this report are
John-Luke Day, Susan Paul,
Tāneora Fraser and Tom White.
While the Hon Justice Whata held a warrant as a Law Commissioner from 11 October
2021, he did not participate in this project which
was largely completed prior
to that date.
Kia mau ki te ara whanaunga
Hold firm the various strands of whānau relationships so they remain
strong
Contents
Executive
summary
GOOD SUCCESSION LAW
1. This
Review of Succession Law examines the body of rules that governs how a
person’s property is distributed when they die.
The review requires
consideration of the Property (Relationships) Act 1976 (PRA), the Family
Protection Act 1955 (FPA) and the Law
Reform (Testamentary Promises) Act 1949
(TPA). It also includes the rules governing the distribution of intestate
estates under the
Administration Act 1969. The succession to whenua Māori
under Te Ture Whenua Maori Act 1993 (TTWMA) does not form part of this
review.
2. This Report begins with consideration of what it means to develop good
succession law. We conclude that the current law governing
entitlements to and
claims against estates is old, out of date and inaccessible. Reform is required
to achieve simple and clear law.
Reform is also required to reflect te ao
Māori perspectives in succession.
3. Our view of te Tiriti o Waitangi | Treaty of Waitangi requires us to focus
on how kāwanatanga might be exercised in a responsible
manner, including
how the exercise of tino rangatiratanga might be facilitated in specific
circumstances. In the context of succession,
we conclude that responsible
kāwanatanga requires us to facilitate tino rangatiratanga through
recognising tikanga Māori
where that is necessary to enable Māori to
live according to tikanga, to weave new law that reflects tikanga Māori and
other values shared by New Zealanders and finally to recognise the limits of
kāwanatanga.
4. This approach requires tikanga Māori to be considered in both
defining and responding to a policy “problem”. In
some areas, this
has been difficult to implement, given the pervasive nature of aspects of state
law. We conclude that it is the
tikanga of the relevant whānau that will be
most important.
5. We also conclude that the exercise of responsible kāwanatanga
requires that tikanga Māori be able to continue to govern
succession to
taonga and the appropriate role of state law in relation to taonga should be
limited to facilitating the resolution
of disputes in accordance with tikanga
Māori. We discuss these matters further in Chapters 3, 12 and 13.
6. We identify several criteria that good succession law should satisfy. Good
succession law should:
(a) be simple, accessible and reflect New Zealanders’ reasonable
expectations;
(b) be consistent with fundamental human rights and international
obligations;
(c) balance mana and property rights (including testamentary freedom) with
obligations to family and whānau in order to promote
whanaungatanga and
other positive outcomes for families, whānau and wider society; and
(d) facilitate efficient estate administration and dispute
resolution.
7. We recommend that a new statute should be enacted as the principal source
of law in place of Part 8 of the PRA, the FPA and the
TPA. It should be titled
the Inheritance (Claims Against Estates) Act (the new Act). The intestacy regime
should be revised in line
with our recommendations in Chapter 7 but remain in
the Administration Act. There is merit in considering whether the new Act and
other statutes relevant to testate and intestate succession could be
consolidated into one statute.
SUCCESSION AND TAONGA
8. Taonga
are knowledge and identity markers for Māori. They may be described in
various ways including that they are highly
prized and valuable objects,
resources, techniques, phenomena or ideas. Taonga remind the living of their
obligations to the living
and future generations. Taonga have associated
intangible attributes such as mana, tapu, kōrero mauri and utu. Where a
taonga
strongly reflects these attributes, it may have its own mauri which must
be respected. For these sorts of taonga, the holder of the
taonga exercises a
kaitiaki role on behalf of the group. Where a taonga has fewer of the
attributes, individuals may exert more influence
over the taonga.
9. We conclude that taonga should be treated in a way that respects the
tikanga relating to taonga grounded in mātauranga Māori.
State law
should not determine the substantive question of succession to taonga. The Wills
Act 2007, the Administration Act and the
new Act should ensure that succession
to taonga is determined by the tikanga of the relevant whānau or hapū.
In our view,
this approach actively protects “te tino rangatiratanga o ...
o ratou taonga katoa” and is the best way for the Crown
to responsibly
exercise its kāwanatanga to that effect.
10. To exclude taonga from succession under state law, taonga must be
defined. We prefer a definition that references the tikanga
of the relevant
whānau or hapū. This reflects our view that what constitutes a taonga
should be determined by the tikanga
of the relevant whānau or hapū. It
is a factual inquiry that must be undertaken considering both the relevant
tikanga and
the circumstances of the case.
RELATIONSHIP PROPERTY ENTITLEMENTS
11. Part
8 of the PRA provides that, when a partner to a qualifying relationship dies,
the surviving partner is entitled to a division
of the couple’s
relationship property instead of whatever provision is available for them under
the deceased’s will or
in an intestacy. The rules that apply to the
division of relationship property when couples separate apply, with some
modifications,
to the division of relationship property on death. The policy
basis for Part 8 of the PRA is that a surviving partner should be no
worse off
on the death of their partner than if the couple had separated.
12. In tikanga Māori, marriage was traditionally a relationship equally
as important for the whānau and hapū as the
spouses because it
provided links between different whakapapa lines and gave each new members.
However, while marriage was highly
valued, it was not given absolute precedence
over other relationships because of the importance of whakapapa. The operation
of whanaungatanga,
aroha and manaakitanga mean whānau take care of their
members, including undoubtedly a bereaved partner. This is likely to manifest
itself in care not only for the partner but for any children of the relationship
and likely involve whānau of both partners.
13. We conclude that the new Act should continue a surviving partner’s
entitlement to a division of relationship property. We
are satisfied with the
policy basis for this approach and consider it aligns with the reasonable
expectations of New Zealanders.
14. A relationship property division under the new Act should occur
differently to division under the current rules of Part 8 of the
PRA:
(a) The option A/option B process through which a partner formally elects a
division of relationship property should not be continued
in the new Act.
Instead, a partner should have a right to apply to the court for a relationship
property division within 12 months
of the grant of administration.
(b) Whereas the PRA revokes any gift to a surviving partner under the
deceased’s will when they elect a relationship property
division, we
recommend the partner should generally still receive the gifts. Whatever
property is then needed to “top-up”
the surviving partner’s
entitlement to the full extent of their relationship property interest should be
awarded from the estate.
We consider this approach is likely to be more
consistent with the deceased’s testamentary intentions and easier for the
personal
representatives to administer.
(c) Key changes we recommended in the PRA review should be brought into the new
Act including changes concerned with the classification
of relationship property
and the relationships that should qualify for relationship property
division.
FAMILY PROVISION CLAIMS
15. Under
the FPA, a family member of the deceased can challenge the provision left to
them under the deceased’s will or in
an intestacy on the grounds it is
inadequate for their “proper maintenance and support”. The courts
have applied the
statute by asking whether the deceased has breached the
“moral duty” they owed to make proper provision. The courts have
held that adequate support, as a standalone concept, can require financial
provision from an estate as recognition of belonging to
the family, even if the
claimant has no financial need.
16. In tikanga, whānau occupies a central place. Rights and obligations
are sourced from whakapapa, whanaungatanga, manaakitanga
and aroha. These
obligations can include financial and moral support as well as an obligation to
take responsibility for each other’s
actions. The whānau is also
crucial for discussing and settling familial issues relating to child rearing
and succession. One
of the primary obligations of the whānau as a whole is
to the welfare of tamariki and mokopuna.
17. The practice of whāngai, where a child is raised by someone other
than their birth parents, usually another relative, is
firmly rooted in
whanaungatanga. The rights of whāngai to succeed according to tikanga
varies amongst whānau, hapū
and iwi.
18. We conclude the FPA requires reform. The objectives of the statute are
not sufficiently clear to satisfy modern legislative drafting
standards.
Instead, the law relies heavily on judicial discretion to assess whether there
has been a breach of “moral duty”.
It is unsatisfactory to have a
legal test expressed in these terms. In many cases, reasonable minds will differ
on the “moral”
way of distributing an estate among family. Feedback
from submitters showed strongly divergent views on when it should be appropriate
to disrupt a deceased’s testamentary intentions to grant further provision
to family members. Aotearoa New Zealand’s
increasing cultural diversity
and the need to enable te ao Māori perspectives no doubt add to the
differences of opinion. In
addition, the courts have been reluctant to accept
arguments that tikanga Māori should determine the scope of a
deceased’s
moral duty.
19. We recommend the repeal of the FPA. In its place, the new Act should
allow certain family members of the deceased to apply to
the court for a family
provision award.
Family provision awards for partners
20. A deceased’s surviving partner from a
qualifying relationship should be eligible to claim family provision. The court
should
make an award where the partner has insufficient resources to maintain a
reasonable, independent standard of living. The court should
take into account
the provision available from the deceased on the deceased’s death. The
court should have regard to the economic
disadvantages arising from the
relationship for the surviving partner. The court should have discretion to
determine the amount of
a family provision award to a surviving partner, having
regard to a list of factors expressed in the new Act, including the tikanga
of
the relevant whānau.
Family provision awards for children
21. In respect of the rights of the deceased’s
children and grandchildren to claim family provision, we are unable to present
a
single recommendation for reform. Through our research and consultation, it is
evident that opinions in Aotearoa New Zealand are
divided on the question of
whether adult children should be eligible to seek further provision from a
parent’s estate. Instead,
we put forward two options for reform for the
Government to consider.
22. Under Option One, the deceased’s children and grandchildren of all
ages should be eligible to claim family provision. A
court should grant an award
when the deceased has unjustly failed to:
(a) provide for the child and grandchild who is in financial need; or
(b) recognise the child or grandchild.
23. Under Option Two, only the deceased’s children under 25 years of
age or those who are disabled would be eligible to claim.
For a child under 25,
a court should make an award when, taking into account whatever provision is
available to the child from the
deceased on the deceased’s death, the
child does not have sufficient resources to enable them to be maintained to a
reasonable
standard and, so far as is practical, educated and assisted towards
attainment of economic independence. For children who are disabled,
the
disability must have reduced the person’s independent function to the
extent that they are seriously limited in the extent
to which they can earn a
livelihood. A court should make an award when, taking into account whatever
provision is available to the
child from the deceased on the deceased’s
death, the child does not have sufficient resources to enable them to maintain a
reasonable standard of living.
24. For both options, the court should have discretion to determine the
amount of a family provision award, having regard to a list
of factors expressed
in the new Act, including the tikanga of the relevant whānau.
25. For both options, we recommend a child of the deceased should be defined
to include an “accepted child” and whāngai.
An accepted child
would be a child for whom the deceased had assumed, in an enduring way, the
responsibilities of a parent. The extent
to which a whāngai should be
entitled to family provision should be informed by the tikanga of the relevant
whānau.
CONTRIBUTION CLAIMS
26. Under
the current law, a person who provides benefits to someone who later dies may
have claims they can bring against the deceased’s
estate in respect of
their contributions. For example, they may claim an award under the TPA, breach
of contract, a constructive
trust over the estate, estoppel, unjust enrichment
or quantum meruit.
27. In tikanga, utu, take-utu-ea, whanaungatanga and whakapapa and mana may
be relevant to contributions to a deceased. Utu involves
the idea of
reciprocity, which provides for the ongoing maintenance of relationships. Utu
sits within the take-utu-ea framework,
which is a framework for assessing
breaches of tikanga and what the appropriate utu is to reach a state of ea, or
resolution. Whanaungatanga
and whakapapa concern the nature of the relationship
between the contributor and the deceased. From an ao Māori perspective
the
appropriate response to contributions is relative to the increase in mana caused
by the contributions and not the contributions
themselves.
28. The main problem with the current law is its complexity and uncertainty.
The multiple claims arising from similar factual situations
can lengthen
litigation and increase costs. Predicting outcomes and awards can be difficult,
which can discourage parties from settling
claims out of court.
29. For these reasons, we proposed in the Issues Paper to codify the current
law through a single statutory cause of action that would
apply in respect of
contributions to a deceased or their estate. We have not, however, carried
through the proposal as a recommendation.
Feedback from consultation, while
broadly supportive of the intention behind the proposal, questioned the extent
to which the law
could be codified and also raised the risk of unintended
consequences.
30. We therefore conclude the new Act should restate a revised testamentary
promise cause of action. The cause of action should respond
in much the same way
as the TPA to hold a deceased to their promise to make testamentary provision to
someone from whom they have
received substantial work or services. Other causes
of action in common law and equity would continue to operate outside the new
Act.
INTESTACY ENTITLEMENTS
31. Intestacy
occurs when the whole or part of the deceased’s estate is not of disposed
of by will. Dying intestate is relatively
common in Aotearoa New Zealand. It is
estimated that around half of those aged 18 or over do not have a will. Rates of
will-making
are lower in Māori, Pacific peoples and Asian communities.
32. Section 77 of the Administration Act sets out the rules for distributing
intestate estates consisting of all property other than
whenua Māori.
Broadly, the rules prioritise the intestate deceased’s partner and
children, followed by parents, siblings,
grandparents, aunts and uncles (by
blood) and cousins. When none of the specified family members are alive to
succeed, the Crown
will take the estate as bona vacantia (ownerless
goods). Intestate succession to whenua Māori is governed by TTWMA.
33. The intestacy provisions in the Administration Act are old and have not
been recently updated. We are concerned the distribution
of intestate estates
provided for under section 77 does not:
(a) reflect contemporary public attitudes and expectations;
(b) respond to the growing number of blended families;
(c) align with a surviving partner’s relationship property entitlements;
and
(d) conform to modern legislative drafting standards.
34. Additionally, the intestacy regime does not reflect tikanga Māori.
For example, certain relationships like whāngai are
not recognised.
35. We conclude that the intestacy regime should be reformed. Revised
provisions governing the distribution of intestate estates should
be continued
in the Administration Act (new intestacy provisions). The objective of the new
intestacy provisions should be to reflect
what most people who die intestate
would do with their estate had they made a will. The Crown should facilitate
tino rangatiratanga
in relation to the intestacy regime, principally through
excluding taonga from the state law rules of intestate succession, making
provision for tikanga to determine when people in whāngai relationships
should succeed in an intestacy, and facilitating tikanga-based
resolution
processes for whānau wishing to agree to a different distribution of the
estate than that provided in state law.
36. Where the deceased intestate (the intestate) is survived by a partner
from a qualifying relationship, we recommend that the partner
should continue to
succeed. We recommend, however, that the prescribed amount to which the partner
is entitled when there are descendants
or parents of the intestate should be
repealed. Instead, a surviving partner’s entitlement should be based in
all cases as
a proportion of the estate regardless of the size of the estate. In
addition, the surviving partner should take the intestate’s
“family
chattels”, which should have the same definition as “family
chattels” under the new Relationship
Property Act we recommended in the
PRA review.
37. Where the intestate is survived by their partner but no children or
descendants, the partner should continue to take the entire
estate. Where,
however, the intestate is survived by their partner and children, we recommend
the introduction of new rules to respond
to the growing numbers of blended
families. The rules should provide that, where the intestate’s children
are from the relationship
with their surviving partner, the partner should take
the entire estate. Where the intestate has one or more children from another
relationship, the partner should take the family chattels and 50 per cent of the
remaining estate. The intestate’s children
should share evenly in the
remaining 50 per cent. The rationale for this approach is that, where the
partner is also the parent of
the children, it is reasonable to expect they will
pass the intestate’s wealth to the children by providing for them during
their life and/or on their death. It also avoids fragmenting the estate in a way
that may negatively affect the surviving partner.
If the surviving partner is
not the parent of the intestate’s children, it is less likely that the
partner would act as a conduit
for the intestate’s children. There is more
reason to ensure that the children receive entitlements from the estate at the
time of the intestate’s death.
38. Where the deceased is survived by their children but no surviving
partner, we recommend the rule continue that the children share
evenly in the
whole estate. Where a child died before the intestate, we recommend that that
child’s share is distributed evenly
between their own children (the
deceased’s grandchildren). This is known as per stirpes/by family
distribution and is the current
law. We consider this should continue to apply
to all situations where a descendant’s parent has predeceased the
intestate.
39. The children who are eligible to succeed in an intestacy should include
the individuals considered by law to be the intestate’s
children.
Stepchildren and other classes of children for whom the intestate may have
accepted parental responsibilities should not
be included. Although the
intestate may have wished to provide for these accepted children, extending the
definition of child or
descendant would overcomplicate the law, create practical
uncertainties and establish an unreasonable responsibility for administrators.
40. People in whāngai relationships should be eligible to succeed in an
intestacy when this accords with the tikanga of the relevant
whānau. The
share of the estate that the individual will receive should be determined
according to the default intestacy rules.
41. Where the intestate leaves no partner nor descendants, we recommend that
the estate is distributed to the intestate’s parents.
If there are no
surviving parents, the siblings of the intestate should share the estate,
passing to the siblings’ descendants
according to per stirpes/by family
distribution. If there are no surviving siblings or their descendants, the
intestate’s grandparents
or their descendants should share the estate.
42. Where no relative eligible to succeed in an intestacy survives the
intestate, the Crown should continue to take the estate as
bona vacantia. It is
rare for estates to vest in the Crown as bona vacantia. The Crown should
continue to have discretion to distribute
the estate to certain parties upon
application. We recommend that this includes other organisations, groups or
people. This should
enable hapū and iwi, charities or other community
groups to apply to The Treasury to receive that money.
AWARDS, PRIORITIES AND ANTI-AVOIDANCE
Property claimable
43. Under
the current law, a surviving partner’s relationship property entitlements
will be met from the relationship property
of the estate. Awards the court makes
under the FPA and TPA are sourced rateably across the estate. However, under the
PRA, FPA and
TPA, the court has discretion to exonerate any part of the estate
from an award.
44. We recommend that these rules should continue with some modification. As
recommended in Chapter 4, a relationship property award
to a surviving partner
should “top-up” the gifts they receive under a will to the full
extent of the surviving partner’s
relationship property interest. This
top-up amount should be sourced from the relationship property of the estate
unless the court
orders otherwise.
Priorities
45. Under the current law, awards under the PRA are
made from the net estate after creditors’ claims are satisfied, subject
to
a partner’s protected interest in the family home, which takes priority
over the deceased’s unsecured creditors. Similarly,
awards under the FPA
are made from the net estate. In contrast, awards under the TPA are made from
the gross estate. Those with successful
claims against an estate under other
statutes, common law and equity will be regarded as unsecured creditors of the
estate. As such,
they will take priority over awards under the PRA and FPA.
46. We recommend the general priority given to creditors should continue. In
addition, we recommend that awards under the testamentary
promise cause of
action under the new Act should be met from the net estate.
47. Awards under the PRA take priority over FPA claims and TPA awards. The
FPA and TPA do not address which awards are to take priority
over the other. The
courts have taken the view, however, that neither Act takes priority, instead
resolving the question on a case-by-case
basis. We recommend this order of
priority should continue under the new Act.
Anti-avoidance
48. The court’s power to make awards under the
FPA and TPA only applies to the property of the estate. Under the PRA, the court
has powers to make relationship property orders by accessing trust property in
some circumstances and recovering property disposed
of to defeat a
partner’s rights.
49. There are, however, several ways in which the property a person owned
during their life will not form part of their estate when
they die. For
instance, the property the deceased co-owned as joint tenant will accrue to the
remaining joint tenant(s) by survivorship
on the deceased’s death. The
deceased may have disposed of property before their death, such as transferring
property on trust,
which had they not, would have remained in their estate on
their death. Because the court’s powers are generally limited to
the
property of the estate, awards to claimants under the PRA, FPA and TPA may be
frustrated by property falling outside the estate.
50. We conclude that having no or limited ability to recover property from
outside the deceased’s estate undermines the rights
that the new Act would
purport to give claimants. Some form of anti-avoidance is therefore justified.
We recommend the new Act contain
provisions that would enable the court to
recover property where the property:
(a) has been disposed of with intent to defeat an entitlement or claim under the
new Act; or
(b) was a property interest the deceased owned as joint tenant that has accrued
to the remaining joint tenant(s) by survivorship
with the effect of defeating an
entitlement or claim.
51. The first ground is based on long-standing provisions in other
legislation, including the PRA, that allow for the recovery of
property disposed
of to defeat others’ rights. The second ground responds to the particular
defeating effect caused by joint
tenancies. Joint tenancies can be a mechanism
for ensuring a designated person receives a benefit from the deceased in a
similar
way to if the deceased had made a gift in their will to that person. The
caselaw shows that joint tenancies often defeat rights against
a
deceased’s estate. Joint tenancies were also raised as a particular issue
in consultation.
52. When either ground applies, the court should have power to order that the
recipient of the property:
(a) transfer the property or part of it to the estate; or
(b) pay reasonable compensation to the estate.
53. The court would only recover the property necessary to satisfy the award
it wished to make under the new Act. The court should
not order the recovery of
property under the anti-avoidance provisions if a recipient of the property
received it in good faith and
provided valuable consideration. The court should
also have discretion whether to order the recovery of property where the
recipient
received it in good faith, and it is unjust to order that the property
be recovered.
USE AND OCCUPATION ORDERS
54. Individuals
who relied on the deceased for housing or household items may suffer hardship
when personal representatives are required
to distribute the estate under the
terms of the deceased’s will or the intestacy regime.
55. Under the PRA, the court has powers to grant a surviving partner
occupation of the family home or other premises forming part
of the relationship
property. It may also vest a tenancy in one partner. The court has additional
powers to grant a partner temporary
use of furniture, household appliances and
household effects.
56. We recommend that similar powers should exist under the new Act. A court
should be able to grant an occupation order to a surviving
partner or a
principal caregiver of any minor or dependent child of the deceased. Where the
deceased left any minor or dependent
child, the new Act should contain a
presumption in favour of granting a temporary occupation or tenancy order to the
principal caregiver
of the child for the benefit of that child. The order will
allow the partner or children use of the home for a period as they transition
to
a life in which they are not dependent on the deceased’s estate for
accommodation support. In exercising its powers, the
court should consider the
best interests of the deceased’s minor or dependent children as a primary
consideration. This approach
is consistent with the recommendations in the PRA
review, the requirements of the United Nations Convention on the Rights of the
Child and the tikanga relating to whanaungatanga, manaakitanga and aroha that
requires the needs of tamariki are met.
57. While the home over which an occupation order is sought will often be
part of the deceased’s estate, it is possible that
in some instances it
will not be. To strengthen the court’s powers to address surviving
partners’ and minor and dependent
children’s accommodation needs
following the deceased’s death, we include recommendations for the
court’s powers
to extend to homes held as joint tenancies and homes held
on trust.
58. We recommend the court should have the power to make furniture orders in
favour of a surviving partner or a principal caregiver
of any minor or dependent
child of the deceased, either independently of or ancillary to any occupation or
tenancy order. When making
furniture orders, the court should consider the best
interests of the child as a primary consideration.
59. When the court makes a use or occupation order, it is appropriate for the
court to have discretion to order that the recipient
of the order pay occupation
rent. Occupation rent compensates those beneficiaries or claimants who have had
their entitlements under
the will or intestacy deferred and is an effective
means of achieving balance between the different parties’ interests.
CONTRACTING OUT AND SETTLEMENT AGREEMENTS
60. Part
6 of the PRA provides that partners and those contemplating entering a
relationship may enter an agreement that governs the
division of their
relationship property rather than the following the provisions of the Act
(contracting out agreements). Partners
may also enter an agreement to settle any
differences that have arisen between them concerning property (settlement
agreements).
To enter a valid contracting out or settlement agreement, the PRA
requires partners to follow procedural safeguards, requiring the
agreement to be
in writing and each partner to obtain independent legal advice from a lawyer who
then witnesses and certifies the
agreement. The court retains residual power to
set aside agreements that would cause serious injustice.
61. In contrast, the courts have held that people cannot contract out of the
FPA because it is paramount as a matter of state policy
and potential claimants
cannot surrender their rights through agreements. Nevertheless, we understand
that parties routinely enter
deeds of family arrangement to settle FPA
claims.
62. Allowing people to contract out of entitlements and claims regarding an
estate recognises the mana of the parties to the agreement.
It is also important
that the state law relating to contracting out and settlement agreements does
not impose undue barriers for
parties wishing to resolve matters pursuant to
tikanga.
63. It is problematic, in our view, that the current law prevents parties
from contracting out and settling matters under the FPA,
but then allows it for
matters under the PRA. This law undermines parties’ freedom to arrange
their affairs in the manner they
wish, promoting a certain outcome. The law can
also create anomalies, such as allowing a partner to claim property through the
FPA
that is designated as the deceased partner’s separate property under a
contracting out agreement. It is also unclear how the
PRA’s provisions
relating to contracting out apply when partners enter mutual wills
arrangements.
64. In general, we favour an approach that enables adults to contract out of
the entitlements and claims they may have in respect
of someone’s estate.
We believe this approach is consistent with the principles underpinning
contemporary state law in Aotearoa
New Zealand that adult parties generally have
autonomy to arrange their property matters with each other in the way they would
like.
65. Consequently, we recommend that partners or people contemplating entering
a relationship should be able to enter contracting out
agreements that deal with
relationship property entitlements and family provision claims under the new
Act. Recognising that these
agreements will involve parties who do not approach
one another as contracting parties at arm’s length, the parties should
comply with the following procedural safeguards in order for the contracting out
agreement to be valid:
(a) The agreement must be in writing.
(b) Each party to the agreement must have independent legal advice before
signing the agreement.
(c) The signature of each party to the agreement must be witnessed by a
lawyer.
(d) The lawyer who witnesses the signature must certify that, before the party
signed, the lawyer explained to that party the effect
and implications of the
agreement.
66. We recommend the new Act should make no express provision for contracting
out of adult children’s family provision claims.
This will not preclude
parties from entering agreements. Instead, parties will be able to enter
agreements that do not otherwise
comply with the procedural safeguards that we
recommend should apply to contracting out agreements between partners. This
approach
will enable the court to consider the terms of any agreement between a
parent and adult child when deciding whether to order family
provision. There
should, however, be no ability to contract out of family provision claims that
may be brought by the deceased’s
minor children.
67. We recommend that mutual wills arrangements should be subject to same
procedural safeguards as contracting out agreements regarding
claims against
estates. That is, if the parties agree not to revoke their wills or deal with
property inconsistently with them, that
agreement should be recorded in writing,
their signatures should be witnessed, and the lawyers advising each partner
should certify
the agreement. The advantage of this approach is that it ensures
consistency with the contracting out requirements that partners
should observe
when making agreements about their entitlements and rights to each other’s
estates. It will also resolve many
of the arguments that currently arise about
whether the parties have in fact entered a mutual wills arrangement.
68. When parties are in a dispute relating to entitlements or claims under
the new Act or entitlements in an intestacy, we recommend
that there should be
the ability to settle the dispute by agreement without the need for court
involvement. We do not recommend that
the legislation should impose procedural
safeguards in the same way as for contracting out agreements. Instead, it should
be a matter
of judgement for the parties, particularly the personal
representatives, as to how the agreement should be entered, as it is under
the
current law. If, however, the dispute involves parties who are unascertained,
minors or persons deemed by law to lack capacity,
we recommend that the new Act
should prescribe a process consistent with the alternative dispute resolution
provisions of the Trusts
Act 2019.
69. For both contracting out and settlement agreements under the new Act, we
recommend that the court retains power to vary or set
aside agreements that
would cause serious injustice. A court should also be able to recover property
that is the subject of a contracting
out agreement or settlement agreement if it
would be captured by the anti-avoidance provisions we recommend in Chapter
8.
JURISDICTION OF THE COURTS
70. Every
application under the PRA must be heard by te Kōti Whānau | Family
Court (the Family Court). Under the FPA and
TPA, however, the Family Court and
te Kōti Matua | High Court (the High Court) have concurrent first instance
jurisdiction.
Claims under the FPA and TPA that relate only to Māori
freehold land must be made in te Kooti Whenua Māori | Māori
Land Court
(the Māori Land Court).
71. The High Court has jurisdiction to determine proceedings relating to
testamentary matters and matters relating to the estate of
deceased persons,
including matters relating to intestate estates. The Māori Land Court has
jurisdiction in relation to intestacy
over Māori freehold land.
72. There is a fundamental question about which court or courts are the most
appropriate to hear and determine claims under the new
Act. We recommend that
the Family Court and High Court should have concurrent jurisdiction to hear and
determine all claims under
the new Act. We favour the Family Court having first
instance jurisdiction because of the family nature of succession matters.
However,
there may be situations where it is appropriate for the High Court to
hear matters at first instance, such as where the proceedings
are complex or
contain matters for which the High Court currently holds exclusive jurisdiction.
If proceedings relating to the same
matter are before both Courts, the High
Court should hear the claim. Both Courts should have the power to transfer
proceedings to
the High Court and the new Act should contain directions on when
proceedings should be transferred to the High Court.
73. We recommend that the High Court and the Family Court have concurrent
jurisdiction to hear and determine matters relating to eligibility
in
intestacies. The High Court should continue to hold exclusive jurisdiction for
all other issues concerning the administration
of an intestate estate and other
related matters.
74. We recommend that the new Act should permit appeals as of right against
interlocutory decisions that can have a significant impact
on the parties’
rights and obligations. For all other interlocutory decisions, claimants should
obtain leave to appeal from
the Family Court or High Court. This recognises
that, in exceptional cases, an interlocutory decision of a procedural nature may
also affect parties’ substantive rights and liabilities, while also
minimising risks that parties unduly protract proceedings
with appeals.
75. For matters involving taonga, we recommend that the Family Court, High
Court and Māori Land Court have concurrent jurisdiction.
This
recommendation is supported by our recommendations that, where needed, Family
Court and High Court judges should continue to
receive education on tikanga
Māori and that the courts be able to appoint a person to inquire into and
advise on matters of
tikanga Māori. We also recommend that the Family Court
and the High Court have power to transfer proceedings or a question in
any
proceedings to the Māori Land Court.
76. We received feedback supporting an extended role for the Māori Land
Court in relation to granting probate and letters of
administration. The
Government should consider whether the Māori Land Court should have greater
jurisdiction to grant probate
and letters of administration regarding matters
already before the Māori Land Court where the applications to grant probate
and letters of administration are uncontested.
RESOLVING DISPUTES IN COURT
Limitation periods
77. Currently,
parties generally have 12 months to commence proceedings under the PRA, FPA and
TPA. We conclude that significant changes
to the limitation periods for
commencing proceedings are not required. We recommend that applications under
the new Act should be
made within 12 months of the grant of administration in
Aotearoa New Zealand subject to the Court’s ability to extend that
time
provided that the application is made before final distribution of the estate.
Final distribution should be deemed to have occurred
where all estate assets are
transferred to those beneficially entitled.
78. Where an estate can be lawfully distributed without a grant of
administration, slightly different rules should apply. Generally,
the
applications should be made within 12 months of the date of death. Personal
representatives should continue to be protected against
personal liability from
claimants under the new Act where they distribute any part of the estate in the
circumstances prescribed
in section 47 of the Administration Act. This protects
personal representatives when they make distributions six months after the
grant
of administration or when they are distributed with the consent of that
person.
Disclosure of information
79. We recommend that the new Act should include an
express duty on personal representatives to assist the court, including by
requiring
personal representatives in proceedings to place before the court all
relevant information in their possession or knowledge. In proceedings
for the
division of relationship property, the surviving partner and the personal
representative should have a duty to disclose each
partner’s assets and
liabilities. To assist parties to make available all appropriate information, we
recommend that affidavit
forms are created for applications under the new
Act.
Evidence
80. Currently an anomaly exists about how evidence
is given in TPA proceedings. In the High Court, evidence is presumed to be given
orally unless the judge directs otherwise. In FPA and PRA proceedings and in TPA
proceedings in the Family Court, evidence is usually
given by affidavit. We
recommend that affidavit evidence is preferred across all claims under the new
Act unless a judge directs
otherwise.
Representation of minors, unascertained parties and persons
deemed by law to lack capacity
81. It is not always clear under the current law how
the interests of minors, unascertained parties or parties deemed by law to lack
capacity should be given effect. We think that it is important that these
parties have their interests represented. The court should
appoint
representatives for such parties in proceedings under the new Act to facilitate
this.
Costs
82. Costs in proceedings are at the discretion of
the court. Historically, in FPA proceedings it was common for the court to order
costs to be paid from the estate. That approach has been criticised for
sometimes encouraging unmeritorious claims. We consider that
the court’s
current flexible approach to awarding costs is appropriate for the proceedings
under the new Act. The new Act should
confirm the court’s power to make
cost orders as it thinks fit.
83. The new Act should also confirm the court’s power to impose costs
for non-compliance with procedural requirements. Parties
to proceedings should
be helped to understand what is required of them and should have it signalled to
them the potential repercussions
for failing to meet these requirements.
84. In the PRA review, we recommended the establishment of a scale of costs
for relationship property proceedings. We see merit in
such a scale being
established for claims under the new Act too.
Tikanga Māori and dispute resolution in
court
85. We have received feedback that many Māori
feel that the Māori Land Court is a more attractive forum for resolving
disputes
than the general courts. This can be attributed to a range of factors
but the expertise of judges and staff in tikanga and te reo
Māori in
particular can make the Māori Land Court a supportive and positive place to
go for dispute resolution. There is
a drive to improve diversity amongst the
judiciary and to educate judges to understand and appreciate te ao Māori
through education
programmes such as the ones offered by Te Kura Kaiwhakawā
| Institute of Judicial Studies. Education on tikanga Māori,
including on
tikanga Māori specific to whānau, should be an important aspect of
education for Family Court and High Court
judges who are not already
knowledgeable in these areas. Additionally, the courts should be able to appoint
a person to inquire into
such matters the court considers may assist it to deal
effectively with the matters before it, including matters of tikanga Māori,
and this power should be specified in the new Act.
RESOLVING DISPUTES OUT OF COURT
86. A
significant proportion of claims against estates are resolved out of court.
There are good reasons to promote the resolution
of matters outside of court. It
is generally quicker and less expensive. It can result in better outcomes for
the families involved
because resolution processes can focus on reaching
agreement rather than adversarial court proceedings. The most common ways of
resolving
disputed claims against estates out of court are:
(a) party or lawyer-led negotiation;
(b) mediation;
(c) arbitration; and
(d) judicial settlement conferences.
87. The Trusts Act provides that the trustees or the court may refer a matter
to an “ADR process”, even if there is no
provision in the terms of
the trust that would allow for it. If a matter is one in which the only parties
are the trustees or beneficiaries,
it can be referred to ADR even if there are
beneficiaries who are unascertained or are deemed by law to lack capacity. The
court
must appoint a representative who must act in the best interests of those
beneficiaries. Except in relation to arbitral awards, the
court must approve an
ADR settlement in order for it to take effect.
88. Part 3A of TTWMA provides for a statutory mediation process to assist
parties to resolve any disputed issues quickly and effectively
between
themselves in accordance with the law, and as far as possible, in accordance
with the relevant tikanga of the whānau
or hapū, for both the process
and the substance of the resolution. The mediator can follow any procedures the
mediator thinks
appropriate.
89. Differences between the PRA, FPA and TPA regarding out-of-court
resolution mean that it is unclear whether parties are able to
comprehensively
settle claims against an estate without going to court. There are also questions
regarding the recognition of tikanga-based
dispute resolution in the new Act and
safeguards for parties who are unascertained, minors or persons who are deemed
by law to lack
capacity.
90. In our view, out-of-court resolution may be particularly beneficial for
the types of family disputes that would arise under the
new Act. A process that
allows the parties to arrive at an agreed settlement may be more helpful at
diffusing family hostilities
than an adversarial court process. Out-of-court
resolution processes may also allow other family matters to be addressed that
may
not be strictly relevant to the legal issues before the court. We therefore
recommend that the new Act should expressly endorse out-of-court
dispute
resolution and tikanga-based resolution. In addition, the new Act and the
Administration Act should provide that parties
can enter an agreement to settle
any differences arising between them (see Chapter 10).
91. We recommend the new Act prescribe a process that is consistent with the
alternative dispute resolution provisions of the Trusts
Act for parties who are
unascertained, minors or persons deemed by law to lack capacity. The process
will require the court to appoint
representatives for those parties to look
after their best interests. The representative would be able to agree on their
behalf to
participate in an out-of-court resolution process and agree to any
settlement reached. Court approval of the settlement should be
required (unless
the settlement is an arbitral award) and the court should be able to vary or set
aside any agreement that would
cause serious injustice.
92. Our recommendations about settlement agreements mean that parties could
engage in an out-of-court or tikanga-based dispute resolution
process of their
own accord, without court involvement, and come to a resolution. It may also be
beneficial for the Government to
consider whether the mediation process under
Part 3A of TTWMA could have broader application.
ROLE OF PERSONAL REPRESENTATIVES
93. “Personal
representatives” is the term we use to refer to executors of a will or
administrators of an intestate estate.
Personal representatives have a duty to
administer the estate and distribute it according to the deceased’s will
or the intestacy
regime.
94. Personal representatives have a duty to be even-handed between
beneficiaries. However, the extent of their duty to notify potential
claimants
is not clear under the current law. We recommend that this is clarified in the
new Act. The new Act should require a personal
representative to give notice in
a prescribed form to a surviving partner or any person that the personal
representative could reasonably
apprehend was in an intimate relationship with
the deceased at the time of death. The prescribed notice should contain
information
about relationship property entitlements and family provision
claims, criteria for qualifying relationships, relevant time limits
and
obtaining independent legal advice. We think that a similar duty should apply in
respect of children if the Government accepts
Option Two of our family provision
proposals limiting eligible children to those under 25 or who meet the
definition of disabled
within the new Act.
95. Personal representatives will be the named defendants in proceedings
against the estate but the role that they are expected to
take may differ
depending on the nature of the claim. For example, in FPA proceedings, the
personal representative is generally expected
to maintain a neutral role but, in
PRA and TPA proceedings, they are often expected to actively defend claims. In
our view the varied
nature of claims makes it difficult to prescribe in statute
the role that personal representatives should take in all proceedings.
We
instead recommend that the new Act includes a duty on personal representatives
to place before the Court all relevant information
in their possession or
knowledge.
96. At times, personal representatives may have a conflict of interest. It is
not unusual, for example, for a personal representative
to be a claimant against
the estate or a beneficiary who intends to defend a claim as a beneficiary. In
most cases, personal representatives
and their legal counsel will know how to
manage the conflict consistently with their legal duties and there is no need
for the new
Act to provide further guidance. In some cases, the court will need
to intervene to remove or replace a personal representative.
The current process
for doing so is cumbersome because it requires a separate application to the
High Court under the Administration
Act. We recommend that this power be
contained within the new Act so both the High Court and the Family Court
are able to remove or replace personal representatives where necessary or
expedient.
CROSS-BORDER MATTERS
97. Conflicts
of laws may arise when the deceased has property in more than one country or is
closely connected to more than one country.
Currently, Aotearoa New
Zealand’s choice of law rules for administration and succession are
primarily governed by common law.
Matters of administration (including claims
under the TPA) are governed by the law of the country in which the assets are
located
and a grant of administration is made. Succession to movable property is
determined by the law of the deceased’s domicile whereas succession
to immovable property is determined by the law of the country where the property
is situated. This includes claims
under the FPA. Similar rules set out in the
PRA apply to relationship property disputes, however, the PRA is silent on which
country’s
laws apply when the PRA does not apply. This creates uncertainty
and risks leaving gaps in the law if no other country’s law
applies.
98. The distinction between movable and immovable property is heavily
criticised. It prevents the succession of an estate being dealt
with under a
single legal regime. In FPA cases it can frustrate the court’s ability to
award the level of provision the court
thinks fit. In intestacy, it might result
in a windfall to a partner because the partner is entitled to more than one
statutory legacy.
99. It can be difficult to identify the deceased’s domicile and may
come as a surprise in some cases, particularly because acquiring
a new domicile
relies on the individual’s intention to reside permanently in that
country. The different treatment between
the TPA and the FPA also places
artificial constraints on courts when making awards.
100. We conclude that the law that should be applied to the succession of a
deceased’s estate should be the law of the deceased’s
last habitual
residence, the country with which the deceased had the closest and most stable
connection. This would be determined
with reference to an overall assessment of
the specific circumstances of the case, including the deceased’s social,
professional
and economic ties to the country. The inquiry should engage the
most relevant law for that case to give effect to the interests of
the deceased,
of people close to the deceased and of creditors. Disputes over relationship
property following the death of a partner
should also be governed by the law of
the deceased’s last habitual residence to avoid fragmenting the law
governing a deceased’s
estate.
101. We recommend that habitual residence is used instead of domicile when
determining the relevant law applying to the construction
or interpretation of a
will and the capacity to make a will or take under a will. We also recommend
that the Government considers
substituting “domicile” with
“habitual residence” in section 22 of the Wills Act 2007.
102. We think that it is important for courts to have some flexibility to
interpret or adapt rules where the combination of choice
of law rules or
decisions taken in different jurisdictions produces an unacceptable outcome that
would differ from the common outcome
in a purely domestic case. We also
recommend that courts retain the power to refuse to apply a foreign rule where
doing so would
be contrary to public policy.
103. Consistent with our recommendations in the PRA review, we consider that
partners should be entitled to agree that the law of
a nominated country should
apply to some or all of their property on death. Agreements should need to
satisfy certain requirements,
including that the agreement is valid under the
law of the country that is chosen under the agreement, or under the law of the
country
with which the relationship had its closest connection. Courts would
also retain discretion not to give effect to a valid agreement
where doing so
would be contrary to public policy.
104. The choice of law rules should not apply to whenua Māori or taonga,
meaning that the succession to these should always be
determined according to
the law of Aotearoa New Zealand.
105. If property is situated outside Aotearoa New Zealand and is immovable
(for example, land), a court should be able to make orders
against a person
rather than against the property directly. The court may order the person to
transfer property or pay a sum of money
to another party. We recommend that the
new Act confirms that the Moçambique rule has no application in
matters covered under that Act. We do not recommend bespoke jurisdictional rules
be included within the
new Act, nor do we recommend that the new Act or the
Wills Act refer to the application of renvoi.
OTHER REFORM MATTERS
The need for education about the law relating to
succession
106. The
low levels of awareness and understanding of the law relating to succession,
both among the public and professional advisers,
has been a key theme emerging
from our research and consultation throughout this review. We think there is a
need for greater awareness
and education about the law related to succession and
the importance of making wills. We recommend the Government consider ways to
improve awareness and understanding of the law and the new Act.
Power to validate wills
107. Section 14 of the Wills Act provides the High
Court with the power to validate a document that appears to be a will but does
not comply with the validity requirements within the Wills Act. The reference to
“document” in section 14 is criticised
because it has generally
prohibited the validation of audio or visual recordings of testamentary
intentions. We recommend the Government
consider reviewing the validation powers
under section 14.
Ōhākī
108. Loosely understood as an oral will, the
Māori practice of ōhākī has not been recognised in state
law. This
fails to recognise tikanga as an independent source of rights and
obligations in Aotearoa New Zealand. We recommend the Government
consider
recognising ōhākī as an expression of testamentary wishes
enforceable under state law.
Sections 18 and 19 of the Wills Act
109. Sections 18 of the Wills Act revokes a will in
its entirety when a person marries or enters a civil union and has not made that
will in contemplation of the marriage or civil union. Section 18 presumes that
the will would no longer reflect the person’s
testamentary intentions,
failing to take into account that today many couples are in a de facto
relationship before they get married.
We recommend that section 18 is repealed.
110. When a couple divorces, section 19 of the Wills Act revokes certain
dispositions and powers given to the former spouse in the
will on the assumption
that the deceased would no longer want these to apply. We think this is a
reasonable assumption to make. Section
19, however, does not apply to
dispositions made to de facto partners. We recommend section 19 be amended to
apply two years after
the point when the partners in any qualifying relationship
type ceased to live together in a relationship. This is because we have
heard
that it is not uncommon for couples to separate but not get around to formally
divorcing or updating their wills.
Multi-partner relationships
111. The PRA is based on the notion of
“coupledom”. Although the Act has special rules for when a partner
maintains two
separate relationships, it does not apply to multi-partner
relationships. Multi-partner relationships may share many of the hallmarks
of a
qualifying relationship. However, we do not recommend any change at this time to
recognise multi-partner relationships in the
property sharing regime. We think
that such changes would need to be considered within a broader context about how
family law should
recognise and provide for adult relationships that do not fit
the mould of an intimate relationship between two people. We recommend
further
research and consultation be undertaken.
Distributing an estate without probate or letters of
administration
112. Section 65 of the
Administration Act provides that certain entities, such as superannuation funds,
banks, or the employer of
the deceased, can pay money to certain relatives of
the deceased, such as a surviving partner, without the need for a grant of
administration.
The amount of money cannot exceed the prescribed amount,
currently $15,000. Additionally, Public Trust and Trustee companies have
powers
to distribute estates without a grant of administration, where the total value
of the estate does not exceed $120,000. We
have heard that the administration
process is complex and costly, and people would like to see these monetary
thresholds increased.
We recommend that the Government consider whether to
increase the threshold for distributing estate money without a grant of
administration.
Social security and the Family Protection Act
113. Section 203 of the Social Security Act 2018
enables Te Manatū Whakahiato Ora | Ministry of Social Development to refuse
to grant a benefit, grant a benefit at a reduced rate or cancel a benefit
already granted where a person has failed to take steps
to advance a tenable FPA
claim. It is an historic power that is now rarely used and we recommend it be
repealed.
Recommendations
CHAPTER 2: GOOD SUCCESSION LAW
R1
R2
R3
R4
A new statute called the Inheritance (Claims Against Estates) Act (the new
Act) should be enacted as the principal source of law applying
to entitlements
and claims against an estate in place of Part 8 of the Property (Relationships)
Act 1976, the Family Protection Act
1955 and the Law Reform (Testamentary
Promises) Act 1949, which should be repealed.
The intestacy regime should remain in the Administration Act 1969 at present,
but Part 3 of that Act should be repealed and new intestacy
provisions enacted
that conform to modern drafting standards and recommendations R30-R51 below.
The Government should consider drafting the new Act in contemplation that the
matters currently covered in the Administration Act
1969, the Wills Act 2007,
the Simultaneous Deaths Act 1958 and the Succession (Homicide) Act 2007 will be
incorporated into the new
Act in the future.
The new Act should:
- reflect
the Crown’s obligations under te Tiriti o Waitangi to exercise
kāwanatanga in a responsible manner, including facilitating
the exercise of
tino rangatiratanga by Māori, in the context of succession;
- be
simple, clear and accessible law that meets the reasonable expectations of New
Zealanders;
- reflect
the New Zealand Bill of Rights Act 1990 and Aotearoa New Zealand’s
commitments under international instruments;
- appropriately
balance sustaining mana and property rights (including testamentary freedom)
with obligations to family and whānau,
in order to promote whanaungatanga
and other positive outcomes for families, whānau and wider society;
and
- promote
efficient estate administration and dispute resolution.
CHAPTER 3: SUCCESSION AND TAONGA
R5
R6
State law should not determine the substantive question of succession to
taonga. The new Act should provide that succession to taonga
is determined by
the tikanga of the relevant whānau or hapū and that taonga should not
be available to meet any entitlement
or claim under the new Act or entitlement
under the new intestacy provisions.
In the context of state succession law, taonga should be defined within a
tikanga Māori construct, but excluding all land. Taonga
should be limited
to items that are connected to te ao Māori.
CHAPTER 4: RELATIONSHIP PROPERTY ENTITLEMENTS
R7
R8
R9
R10
R11
A surviving partner from a qualifying relationship should have a right under
the new Act to choose a division of relationship property
on the death of their
partner.
The option A/option B election process in Part 8 of the Property
(Relationships) Act 1976 should not be continued in the new Act.
If a surviving partner chooses a relationship property division and there is
a will, they should keep whatever gifts are made for
them under the will. They
should then receive from the estate whatever further property is needed to
ensure they receive the full
value of their relationship property
entitlement.
Where it is necessary to avoid undue disruption to a surviving
partner’s life, a court should have discretion to replace property
the
surviving partner would otherwise receive under the will with particular items
of relationship property provided the surviving
partner does not receive
property of a value greater than their relationship property interest in the
estate.
To be eligible to choose a division of relationship property, the surviving
partner should have been in a qualifying relationship
with the deceased, being
a:
- marriage;
- civil
union; or
- de
facto relationship of three years or more.
R12
R13
R15
R16
R14
The new Act should include a presumption that two people are in a qualifying
de facto relationship when they have maintained a common
household for a period
of at least three years as recommended in the PRA review (R26). The presumption
should be rebuttable by evidence
that the partners did not live together as a
couple, having regard to all the circumstances of the relationship and the
matters currently
prescribed in section 2D(2) of the PRA.
When the partners have not maintained a common household for three years or
more, the burden of proof of establishing that a qualifying
de facto
relationship exists should be on the applicant partner, as recommended in the
PRA review (R27).
A qualifying de facto relationship should include a de facto relationship
that does not satisfy the three-year qualifying period if
it meets the
additional eligibility criteria that:
- there
is a child of the relationship and the court considers it just to make an order
for division; or
- the
applicant has made substantial contributions to the relationship and the court
considers it just to make an order for division.
(See R29 in the PRA
review.)
Where partners have separated prior to death, the surviving partner should
remain eligible to claim under the new Act provided no
longer than two years
have elapsed between the partners ceasing to live together in the relationship
and the time a partner dies.
The court should have discretion to allow an
application when separation occurred more than two years before death.
The time period in which partners must apply for a relationship property
division on separation when neither partner has died should
be made consistent
with the rules that apply to relationships ending on death.
The new Act should provide for contemporaneous relationships in a stand-alone
provision that:
- applies
whenever property is the relationship property of two or more qualifying
relationships (contested relationship property);
and
- requires
a court to apportion contested relationship property in accordance with the
contribution of each relationship to the acquisition,
maintenance and
improvement of that property.
(See R33 in the PRA review.)
R17
A surviving partner’s relationship property entitlements should be
based on the classification and division rules recommended
in the PRA review
(R8–R16) that would apply when partners separate, including that:
- property
acquired before the relationship or as a gift or inheritance should be separate
property, including the family home;
- the
burden of proof of establishing whether property is separate property should be
on the party that owns the property; and
- the
court should have discretion to order unequal division of relationship property
where there are extraordinary circumstances that
make equal sharing repugnant to
justice.
CHAPTER 5: FAMILY PROVISION CLAIMS
R18
R20
R19
R21
The
Family Protection Act 1955 should be repealed. In its place, the new Act should
provide that certain family members of the deceased
may claim family provision
awards.
A court should make a family provision award to a surviving partner where,
taking into account the provision available from the deceased
on the
deceased’s death, a surviving partner has insufficient resources to
maintain a reasonable, independent standard of living,
having regard to the
economic disadvantages arising from the relationship for that partner.
A
partner should have been in a qualifying relationship as defined in
recommendations R11–R15 to be eligible to claim family
provision.
In
determining the amount of a family provision award to a partner, the court
should take into account:
- the
extent of the economic disadvantages the partner suffers from the relationship;
- the
duration of the relationship;
- the
partner’s responsibilities for any children of the deceased;
- the
partner’s current and likely future employment situation; and
- the
tikanga of the relevant whānau.
R22
R24
R23
R25
In determining the amount of a family provision award to a partner, the court
should have discretion whether to take into account
any means-tested social
security assistance a surviving partner receives.
A child of the deceased eligible to claim family provision
should be defined in the new Act to include:
- any
individual for whom the deceased is considered by law to be the child’s
parent;
- an
accepted child, being a child for whom the deceased had assumed, in an enduring
way, the responsibilities of a parent; and
- a
whāngai.
A grandchild eligible to claim family provision should be defined in the new
Act to include:
- a
child considered by law to be a child of the deceased’s child;
- a
child of a whāngai of the deceased; and
- a
whāngai of the deceased’s child or whāngai.
Because of the divided opinions in Aotearoa New Zealand, no option for reform
will represent a consensus view on the circumstances
in which a deceased’s
children should be eligible to claim family provision. Consequently, the
Government should consider implementing
one of the following two options for
reform regarding children’s claims.
Option One: Family provision awards for all children and grandchildren of
the deceased
A court should make a family provision award to a child or grandchild of the
deceased where, despite whatever provision is available
to the child or
grandchild from the deceased on the deceased’s death, the deceased has
unjustly failed to:
- provide
for the child or grandchild who is in financial need; or
- recognise
the child or grandchild.
In determining whether to make an award and
the amount of an award, the court should take into account:
- the
size of the estate and the demands on it;
- the
relative financial means and needs of the claimant and other beneficiaries;
- whether
the deceased has given inadequate or no consideration to the strength and
quality of the claimant’s relationship with
the deceased over their
lifetime;
- whether
the will can be seen to be irrational or capricious;
- the
reasons (if any) given by the deceased for making their
will;
- any
disability or other special needs of the claimant and of other beneficiaries in
the estate; and
- the
tikanga of the relevant whānau.
For applications made by a
grandchild, the court should take into account the provision made to the
grandchild’s parents from
the deceased.
A court should not take into account any means-tested social security
assistance a claimant receives.
Option Two: Family provision awards for children under 25 years and
disabled children
Children under 25 years
A court should make a family provision award to a child of the deceased aged
under 25 years when, taking into account whatever provision
is available to the
child from the deceased on the deceased’s death, the child does not have
sufficient resources to enable
them to be maintained to a reasonable standard
and, so far as is practical, educated and assisted towards attainment of
economic
independence.
In determining a family provision award for a child, the court must make the
best interests of the child a primary consideration,
taking into account:
- the
child’s age and stage of development, including the level of education or
technical or vocational training reached;
- any
other actual or potential sources of support available to the child, including
support from a surviving parent (including any
family provision award made to
that parent that reflects their responsibilities for the child), a trust or
provision from the estate
of another deceased parent;
- the
amount of support provided by the deceased to the child during the
deceased’s life or on their death;
- the
actual and potential ability of the child to meet their needs; and
- the
tikanga of the relevant whānau.
A court should not take into
account any means-tested social security assistance a claimant receives.
Disabled children
A court should make a family provision award to a disabled child of the
deceased when, taking into account whatever provision is available
to the child
from the deceased on the deceased’s death, the child does not have
sufficient resources to enable them to maintain
a reasonable standard of
living.
Disability should include any long-term physical, mental, intellectual or
sensory impairments that have reduced the person’s
independent function to
the extent that they are seriously limited in the extent to which they can earn
a livelihood.
A disabled adult child should be eligible if they had been wholly or partly
dependent on the deceased for support immediately prior
to death, or if the
child’s disability arose prior to them reaching 25 years.
In making a family provision award to a disabled child, the court should take
into account:
- the
child’s age and stage of development, including the level of education or
technical or vocational training reached;
- the
possibility of recovery from disability;
- any
other actual or potential sources of support available to the child, including
support from a surviving parent (including any
family provision award made to
that parent that reflects their responsibilities for the child), a trust or
provision from the estate
of another deceased parent;
- the
amount of support provided by the deceased to the child during the
deceased’s life or on their death;
- the
actual and potential ability of the child to meet their needs; and
- the
tikanga of the relevant whānau.
A court should not generally
take into account any means-tested social security assistance a disabled child
receives, but the court
should have a residual discretion to take state
assistance into account.
Children aged over 25 years or who are not disabled would be ineligible to
claim family provision.
R26
The Government should consider whether and, if so, how family provision under
the new Act should relate to succession of Māori
freehold land under Te
Ture Whenua Maori Act 1993.
CHAPTER 6: CONTRIBUTION CLAIMS
R27
R28
The Law Reform (Testamentary Promises) Act 1949 should be repealed. In its
place, a testamentary promise cause of action should be
available under the new
Act. Other causes of action at common law or equity arising from contributions
made towards a person who
has since died should continue to operate outside the
new Act.
A court should grant a testamentary promise award to a claimant where:
- the
claimant has rendered services to or performed work for the deceased during the
deceased’s lifetime;
- the
services or work must have been substantial in that they required the claimant
to contribute significant time, effort, money or
other property or to suffer
substantial detriment;
R29
- the
claimant must not have been fully remunerated for the work or
services;
- the
deceased expressly or impliedly promised to make provision in their will for the
claimant in return for the work or services;
and
- the
deceased has failed to make the promised testamentary provision or otherwise
fully remunerate the claimant.
The quantum of an award should be the amount promised by the deceased,
subject to the court’s overriding discretion to grant
an award that is
reasonable in the circumstances.
CHAPTER 7: INTESTACY ENTITLEMENTS
R30
R32
R31
R33
R34
Individuals considered by law to be the children of the intestate should
remain eligible to succeed in an intestacy.
Stepchildren and other classes of children for whom the intestate accepted
parental responsibilities (other than whāngai) should
remain ineligible to
succeed in an intestacy.
Where there is no adoption under the Adoption Act 1955, the eligibility of
people in whāngai relationships to succeed in an intestacy
should be
determined according to the tikanga of the relevant whānau. The share of
the estate that the individual will receive
should be determined according to
the default intestacy rules.
The Government should consider the effect that adoption under the Adoption
Act should have on the intestate succession rights of people
in whāngai
relationships where there has been an adoption under state law. Until that time,
the rights of the individuals to
inherit in an intestacy should continue to be
determined according to state law where a tamaiti whāngai has been adopted
under
the Adoption Act.
Children in utero at the time of the intestate’s death who are later
born alive should continue to be eligible to succeed in
an intestacy, and
children born from posthumous reproduction should continue to be ineligible to
succeed in an intestacy.
The term “descendants” should be used in the new intestacy
provisions in place of the term “issue.”
R35
R36
R37
R38
R39
R40
R41
R42
R43
R44
The definition of personal chattels used in the new intestacy provisions
should be amended to be consistent with the definition of
family chattels in the
PRA, including the recommended change in the PRA review, so that the definition
is amended to refer to those
items “used wholly or principally for family
purposes” (see R11 in the PRA review).
Heirlooms and items of special significance should not be expressly excluded
from the definition of family chattels in an intestacy.
The same criteria that qualify a partner to relationship property
entitlements (R11–R14) should apply to qualify a partner to
succeed in an
intestacy.
Separated surviving partners should remain eligible to succeed in an
intestacy provided no more than two years have elapsed since
the surviving
partner and the intestate ceased living together as a couple.
Where a partner has died within two years of separation, and the couple has
divided their relationship property by entering an agreement
that does not
conform to the new Act’s requirements, the surviving partner should remain
eligible to succeed in an intestacy.
The court should, however, retain power to
give effect to a non-compliant settlement agreement if non-compliance has not
caused material
prejudice to the parties.
The per stirpes/by family distribution of intestate estates should
continue.
The intestacy regime should continue to take no account of property that does
not fall into the estate.
A minor who is eligible to succeed in an intestacy should continue to take a
vested interest held on trust until they reach 18 years.
The prescribed amount which a surviving partner of the intestate takes in an
intestacy when there are descendants or parents of the
intestate should be
repealed.
Where an intestate is survived by a partner, no descendants but one or more
parent, the intestacy regime should provide that the partner
takes the entire
estate.
R45
R46
R47
A surviving partner of an intestate should take the whole of the estate where
all the intestate’s children are of that relationship.
Where one or more
of the intestate’s children are of another relationship, the
intestate’s partner should take the family
chattels and 50 per cent of the
remaining estate, and the intestate’s children should share evenly in the
remaining 50 per
cent.
Where an intestate is survived by descendants but no partner, the
intestate’s children should share the estate evenly. Per stirpes/by
family
distribution should apply to the shares available to descendants.
Where an intestate is not survived by a partner or any descendants, the
intestate’s parents should share the estate evenly.
If the intestate is
survived by only one parent, that parent should take the whole estate.
R48
Where an intestate is survived by siblings, nieces and nephews but no
partner, descendants or parents, the intestate’s siblings
should share the
estate evenly. Per stirpes/by family distribution should apply to the shares
available to nieces and nephews or
their descendants.
R49
Where an intestate is not survived by any partner, descendants, parents,
siblings or siblings’ descendants, the current distribution
method between
grandparents and their descendants according to the parental lines should
apply.
R50
Where the intestate is not survived by any of the relatives listed above
(partner, descendants, parents, siblings, siblings’
descendants,
grandparents, grandparents’ descendants), the Crown should take the estate
as bona vacantia.
R51
The Crown should have discretion to distribute any or all of the estate to
the following parties on application:
- Dependants
of the intestate (whether kindred or not).
- Any
organisation, group or person for whom the intestate might reasonably be
expected to have made provision.
- Any
other organisation, group or person.
CHAPTER 8: AWARDS, PRIORITIES AND ANTI-AVOIDANCE
R52
R53
R54
R55
R56
R58
R57
A surviving partner’s relationship property entitlements under the new
Act should be met from the relationship property of the
estate. The court should
have discretion to order that the entitlements be met from the whole or part of
the estate.
Family provision awards should be met rateably against the whole estate. The
court should have discretion to order that awards are
met from only part of the
estate.
Testamentary promise awards should be met rateably against the whole estate.
The court should have discretion to order that awards
are met from only part of
the estate.
Creditors’ rights should take priority over all entitlements and claims
under the new Act.
If an estate has insufficient property to fully satisfy relationship property
awards, family provision awards and testamentary promise
awards, the new Act
should give relationship property awards priority. The new Act should not
prescribe an order of priority between
family provision awards and testamentary
promise awards but instead enable the court to determine priority in each case.
Where there is insufficient property in an estate to meet all entitlements
and awards under the new Act, the Court should have power
to recover property to
the estate from a third party when that property:
- has
been disposed of with intent to defeat an entitlement or claim under the new
Act; or
- was
owned by the deceased as joint tenant and it has accrued to the remaining joint
tenant(s) by virtue of survivorship with the effect
of defeating an entitlement
or claim.
The court should have power to order that:
- the
recipient of the property transfer the property or part of it to vest in the
estate; or
- the
recipient of the property pay reasonable compensation to the
estate.
R59
R60
R61
R62
The court should not order the recovery of the property or the payment of
compensation if the recipient of the property received it
in good faith and
provided valuable consideration. The court should have discretion whether to
order the recovery of property or
the payment of compensation where the
recipient received it in good faith and it is unjust to order that the property
be recovered.
Claimants under the new Act should be able to apply to the court directly for
the recovery of property from a third-party recipient.
Personal
representatives’ rights to apply for a division of relationship property
on behalf of the estate should be repealed.
A surviving partner should retain the additional rights they have to recover
property to satisfy relationship property claims based
on recommendations in the
PRA review (R58–R66).
A surviving partner should be able to lodge a notice of claim over land of
the estate in which they claim a relationship property
interest.
CHAPTER 9: USE AND OCCUPATION ORDERS
R63
The new Act should provide the court with powers to make:
- occupation
orders;
- tenancy
orders; and
- furniture
orders
in favour of a surviving partner, a principal caregiver of
any minor child of the deceased or a dependent child of the deceased.
For the purposes of granting occupation, tenancy and furniture orders, a
child of the deceased should include:
- an
accepted child, being a child for whom the deceased had assumed, in an enduring
way, the responsibilities of a parent; and
- a
whāngai.
R64
R65
R66
R67
The court should have power to grant an occupation order over any property of
the estate, as well as:
- property
the deceased owned as a joint tenant that would accrue to the remaining joint
tenant(s) by survivorship; and
- property
held on trust where the deceased or any minor or dependent child of the deceased
are beneficiaries of the trust (including
as a discretionary
beneficiary).
The court should consider the best interests of any minor or dependent
children as a primary consideration. Where the deceased left
any minor or
dependent child, the new Act should contain a presumption in favour of granting
a temporary occupation or tenancy order
to the principal caregiver of the child
for the benefit of the child. A court may decline to make an order if it is
satisfied that
an order is not in the child’s best interests or would
otherwise result in serious injustice.
The new Act should expressly refer to the court’s powers to award
occupation rent when appropriate in the circumstances as a
condition of any
occupation order.
The property available for a furniture order should extend to other types of
property that would come under the new Act’s definition
of family
chattels.
CHAPTER 10: CONTRACTING OUT AND SETTLEMENT AGREEMENTS
R68
R69
Partners and people contemplating entering a relationship, who are informed
of their rights, should be able to enter contracting out
agreements that deal
with relationship property entitlements and family provision claims under the
new Act (contracting out agreements).
A contracting out agreement under the new Act should be void unless it
complies with the following procedural safeguards:
- The
agreement must be in writing.
- Each
party to the agreement must have independent legal advice before signing the
agreement.
- The
signature of each party to the agreement must be witnessed by a lawyer.
- The
lawyer who witnesses the signature must certify that, before the party signed,
the lawyer explained to that party the effect and
implications of the
agreement.
R70
R73
R72
R74
R71
R75
R76
R77
R78
If a contracting out agreement does not comply with the formalities in R69 a
court should have power to give effect to the agreement
if non-compliance has
not caused material prejudice to the parties.
Contracting out agreements should be subject to any other law that makes a
contract void, voidable or unenforceable.
A court should be able to set aside or vary a contracting out agreement if
satisfied that giving effect to it would cause serious
injustice. In deciding
whether the agreement would cause serious injustice, the court should have
regard to the matters currently
set out in section 21J of the PRA, the best
interests of any minor or dependent children of the deceased and the tikanga of
the relevant
whānau. For the purposes of determining whether to set aside
or vary an agreement, a child of the deceased should include:
- an
accepted child, being a child for whom the deceased had assumed, in an enduring
way, the responsibilities of a parent; and
- a
whāngai.
Contracting out agreements should be subject to the new Act’s
anti-avoidance provisions recommended in R57-R62.
There should be no ability to contract out of family provision claims with
minor children or adult children who are deemed by law
to lack capacity.
An agreement between former partners on their separation that purports to be
a full and final settlement of relationship property
claims should be presumed
to be a full and final settlement of the surviving partner’s entitlements
and claims under the new
Act unless the agreement provides otherwise.
Mutual wills agreements should be subject to the same procedural safeguards
as contracting out agreements regarding claims against
the other’s
estate.
The new Act and the Administration Act 1969 should clarify that parties may
enter agreements to settle any difference arising between
them in relation to
relationship property entitlements, family provision claims, testamentary
promise claims and intestacy entitlements
under the new Act and the intestacy
regime (settlement agreements). The legislation should impose no procedural
safeguards for parties
to observe when entering settlement agreements.
R81
Settlement agreements should be subject to any other law that makes a
contract void, voidable or unenforceable.
R79
R80
A court should be able to set aside or vary a settlement agreement if
satisfied that giving effect to it would cause serious injustice.
In deciding
whether the agreement would cause serious injustice, the court should have
regard to the matters currently set out in
section 21J of the PRA, the best
interests of any minor or dependent children of the deceased, and the tikanga of
the relevant whānau.
Settlement agreements should be subject to the new Act’s anti-avoidance
provisions recommended in R57-R62.
CHAPTER 11: JURISDICTION OF THE COURTS
R81
R82
R83
R84
Te Kōti Whānau | Family Court and te Kōti Matua | High Court
should have concurrent first instance jurisdiction to
hear and determine claims
under the new Act, subject to both Courts having the power to remove the
proceedings to te Kōti Matua
| High Court.
Te Kōti Whānau | Family Court and te Kōti Matua | High Court
should have concurrent jurisdiction to hear and determine
questions concerning
the eligibility of individuals to succeed in an intestacy. Te Kōti Matua |
High Court should continue to
hold jurisdiction for other issues concerning the
administration and distribution of an intestate estate.
The new Act should permit appeals as of right against interlocutory decisions
that can have a significant impact on the parties’
rights and obligations,
namely:
- occupation,
tenancy and furniture orders;
- transfers
of the proceedings to te Kōti Matua | High Court;
- orders
for disclosure of information; and
- applications
regarding the removal of a notice of claim.
Te Kōti Whānau | Family Court should have jurisdiction to hear and
determine any matter within the general civil and equitable
jurisdiction of te
Kōti-ā-Rohe | District Court pursuant to sections 74 and 76 of the
District Court Act 2016. Claims heard
and determined in te Kōti Whānau
| Family Court should not be subject to the financial limit imposed on te
Kōti-ā-Rohe
| District Court.
R85
R87
R86
R88
R89
Te Kooti Whenua Māori | Māori Land Court, te Kōti Whānau
| Family Court and te Kōti Matua | High Court should
have concurrent
jurisdiction to hear and determine succession matters involving taonga.
Te Kōti Whānau | Family Court and te Kōti Matua | High Court
should have the power to transfer proceedings or a question
in proceedings to te
Kooti Whenua Māori | Māori Land Court.
The Government should consider further the appropriate rights of appeal for
matters relating to taonga.
The Government should consider whether the te Kooti Whenua Māori |
Māori Land Court should have jurisdiction to grant applications
for probate
and letters of administration regarding estates for which te Kooti Whenua
Māori | Māori Land Court has jurisdiction
in relation to succession to
Māori freehold land where the applications for probate or letters of
administration are uncontested.
The Government should consider the jurisdiction of te Kooti Whenua Māori
| Māori Land Court to hear and determine family
provision and testamentary
promise claims in the new Act.
CHAPTER 12: RESOLVING DISPUTES IN COURT
R90
R91
Applications for relationship property awards, family provision awards and
testamentary promise awards under the new Act should be
made within 12 months
from the grant of administration in Aotearoa New Zealand.
Where an estate can be lawfully distributed without a grant of
administration, applications for relationship property awards, family
provision
awards and testamentary promise awards should be made within the later of:
- 12
months from the date of the deceased’s death; or
- 12
months from the grant of administration in Aotearoa New Zealand (if the grant is
made within six months of the deceased’s
death).
R92
R93
R94
R95
R96
R97
R98
A court should have discretion to grant an extension to bring a claim under
the new Act provided the application for extension is
made before the final
distribution of the estate.
The new Act should provide that final distribution of an estate will occur
when all estate assets are transferred to those beneficially
entitled rather
than when the personal representative has finished their administrative duties
and is holding the property on trust.
Personal representatives should be protected against personal liability from
claimants under the new Act where they distribute any
part of the estate in the
circumstances prescribed in section 47 of the Administration Act 1969.
The new Act should include an express duty on personal representatives to
assist the court, similar to that in section 11A of the
Family Protection Act
1955. As part of that duty, on any application under the new Act, personal
representatives should have an obligation
to place before the court all relevant
information in their possession or knowledge concerning:
- members
of the deceased’s family;
- the
financial affairs of the estate;
- any
transaction or joint tenancy between the deceased and a third party in respect
of which an application has been made to recover
property from the third party
to meet a claim;
- persons
who may be claimants under the Act; and
- the
deceased’s reasons for making the testamentary dispositions and for not
making provision or further provision for any person.
In proceedings for the division of relationship property, the surviving
partner and the personal representative should have a duty
to disclose each
partner’s assets and liabilities, and this should be expressed in the new
Act.
Affidavit forms should be created for the applications under the new Act to
ensure appropriate information is made available.
Unless a judge directs otherwise, affidavit evidence should be preferred for
all claims under the new Act irrespective of the court
in which the proceeding
is commenced.
R99
R101
R100
R102
R103
R104
R105
When any minor child or adult deemed by law to lack capacity wishes to claim
or may be affected by a claim under the new Act, the
court should appoint a
representative for that party. The court must similarly appoint a representative
for any unascertained party
who may be affected by a claim under the new Act.
These representation orders should be made at the time of giving directions for
service.
The new Act should contain a provision expressly referring to the
court’s power to make cost orders as it thinks fit.
The new Act should make express provision for the court to impose costs for
non-compliance with procedural requirements.
A separate scale of costs should be established for proceedings under the new
Act (which may be the scale of costs recommended in
R107 of the PRA review).
Any Rules Committee established, as recommended by the Commission in the PRA
review in R102, should consider whether to develop rules
in respect of claims
under the new Act.
Education on tikanga Māori, including on tikanga Māori specific to
whānau, should be an important aspect of education
for Family Court and
High Court judges who are not already knowledgeable in these areas.
The courts should be able to appoint a person to inquire into such matters
the court considers may assist it to deal effectively with
the matters before
it, including matters of tikanga Māori, and this power should be specified
in the new Act.
CHAPTER 13: RESOLVING DISPUTES OUT OF COURT
R106
The new Act should expressly endorse out-of-court dispute resolution and
tikanga-based dispute resolution.
R109
R107
R108
R110
The new Act should prescribe a process for out-of-court resolution involving
parties who are unascertained, minors or persons deemed
by law to lack capacity.
The court should appoint representatives for parties who are unascertained (such
as beneficiaries yet to
be born), minors or persons deemed by law to lack
capacity when:
- a
person makes a claim against an estate under the new Act that may affect the
interests of any parties who are unascertained, minors
or persons who are deemed
by law to lack capacity; or
- any
minor or person who is deemed by law to lack capacity wishes to bring a claim
under the new Act.
A representative for parties who are unascertained, minors or persons who are
deemed by law to lack capacity should be able to agree
to participate in an
out-of-court resolution process and agree to any settlement reached. The
representative should act in the best
interests of the parties they
represent.
The court should be required to approve any settlement that involves
unascertained parties, minors or persons deemed by law to lack
capacity. It
should also be able to vary or set aside any agreement that would cause serious
injustice.
The same process set out at R107–R108 for appointing representatives
should apply for arbitrations involving parties who are
unascertained, minors or
persons deemed by law to lack capacity. However, outcomes reached by arbitration
should not require approval
by the court.
CHAPTER 14: ROLE OF PERSONAL REPRESENTATIVES
R111
The new Act should require personal representatives to give notice within
three months of a grant of administration to:
- the
deceased’s surviving partner; and/or
- any
person who the personal representatives reasonably apprehend was in an intimate
relationship with the deceased at the time of
death.
The notice
should be in a prescribed form and contain information about:
- relationship
property entitlements;
- family
provision claims;
- relevant
time limits; and
- obtaining
independent legal advice.
R112
R113
R115
R114
R117
R118
R116
If the Government decides to implement Option One from R25 so that all
children and grandchildren of the deceased are eligible claimants
for family
provision, personal representatives should not be required to give notice to the
children and grandchildren.
If the Government decides to implement Option Two from R25 so that the
deceased’s children who are under 25 or are disabled
are eligible
claimants for family provision, personal representatives should be required to
give notice within three months of the
grant of administration to:
- the
guardian of any of the deceased’s children aged under 18; and
- children
aged 18 or older who may be eligible to claim family provision.
The
notice should be in a prescribed form. It should set out information about
family provision, relevant time limits and obtaining
independent legal
advice.
Personal representatives’ duties to give notice should be satisfied
when they have taken reasonable steps to search for and
give notice to the
required recipients.
Where the estate can be distributed without personal representatives being
appointed, there should be no notice requirements. However,
trustee companies
who administer estates having filed an election to administer the estate should
observe the notice requirements.
Personal representatives should not be required to give notice to potential
testamentary promise claimants.
The new Act should not prescribe the role personal representatives are to
take in proceedings, except to provide a duty to place before
the court
information as recommended in R95.
No provision should be made within the new Act for how personal
representatives are to manage conflicts of interest, instead the general
law on
personal representatives’ duties should continue to apply. The new Act
should, however, contain a power for both te
Kōti Matua | High Court
and te Kōti Whānau | Family Court to remove or replace personal
representatives where necessary or expedient.
CHAPTER 15: CROSS-BORDER MATTERS
R119
R121
R122
R123
R124
R120
R125
R126
With the exceptions of succession to Māori land (under Te Ture Whenua
Maori Act 1993) and succession to taonga (discussed in
Chapter 3), all matters
of succession should be governed by the new choice of law rules, which should be
expressed in statute. The
multilateral choice of law rules should identify the
most appropriate system of law to govern the issue in question, whether that
is
New Zealand law or foreign law, with the exception of formal validity, which
would continue to be governed by section 22 of the
Wills Act 2007.
The applicable law for determining matters of succession should be the law of
the deceased’s last habitual residence. This should
include successions
with or without a will, relationship property claims on death and other claims
against estates. Habitual residence
should be defined in legislation, drawing on
the definition in the European Union Succession Regulation, with the objective
of identifying
the country to which the deceased had the closest and most stable
connection.
The construction or interpretation of a will should be governed by the law
intended by the will-maker. This should be presumed to
be the law of their
habitual residence unless there is a clear indication that the will-maker
intended a different law to be applied.
The applicable law for determining capacity to make a will should be the law
of the deceased’s habitual residence at the time
of making the will,
whereas the applicable law for determining capacity to take under the will
should be the law of the deceased’s
habitual residence at the time of
death.
A rule of adaptation should be available and prescribed in statute.
A New Zealand court should have the power to refuse to apply a foreign rule
where doing so would be contrary to public policy.
The Government should consider replacing the reference to
“domicile” with “habitual residence” in section
22 of
the Wills Act 2007.
During their lifetime, partners should be entitled to agree that the law of a
nominated country should apply to some or all of their
property on death. These
agreements should be subject to the same validity requirements recommended in
R137 and R138 of the PRA review.
R127
R128
R129
R130
R131
The court should also retain a residual discretion to set aside a choice of
law agreement if applying the law of another country or
giving effect to the
agreement would be contrary to public policy.
The court should have broad powers to give effect to relationship property
orders, family provision awards and testamentary promise
awards. These should
expressly include the power, in relation to property situated outside Aotearoa
New Zealand, to order a party
to a proceeding to transfer property or pay a sum
of money to another party.
The courts should continue to determine the application of renvoi in a
particular case when relevant but the application of renvoi
should not be
referred to in statute.
The new Act should confirm the broad subject-matter jurisdiction of te
Kōti Whānau | Family Court and te Kōti Matua
| High Court but
should not otherwise include bespoke jurisdictional rules.
The new Act should confirm that the Moçambique rule has no application
in matters covered by that Act.
CHAPTER 16: OTHER REFORM MATTERS
R133
R132
R134
R135
The Government should consider ways to improve awareness and understanding of
the law related to succession and the new Act.
The Government should consider reviewing the validation powers in section 14
of the Wills Act 2007, including whether the High Court
should have the power to
validate audio or visual recordings as a will or other expression of
testamentary wishes.
The Government should consider recognising ōhākī as an
expression of testamentary wishes enforceable under state law.
Section 18 of the Wills Act 2007 should be repealed.
R136
R137
R138
R139
R140
Section 19 of the Wills Act 2007 should be amended to apply two years after
the point when the partners in any relationship type ceased
to live together in
a relationship.
The definition of de facto relationship in the Wills Act 2007 should be
amended to refer to two people who “live together as
a couple”,
consistent with the definition in the Property (Relationships) Act 1976.
The Government should consider undertaking research to identify the nature
and extent of multi-partner relationships in Aotearoa New
Zealand and how
multi-partner relationships should be recognised and provided for in the
law.
The Government should consider whether to increase the monetary threshold for
distributing an estate without a grant of administration.
Section 203 of the Social Security Act 2018 should be repealed.
CHAPTER 1
Introduction
- 1.1 State
succession law is a body of rules that governs how a person’s property is
distributed when they die. This review focuses
on rights to a deceased
person’s property whether the deceased left a will or died intestate.
Succession to the estate often
occurs at a time of grieving. Family and
whānau members or others can be upset to find how the deceased has
organised their
affairs or how the law applies when no will has been made.
Māori may find that state law in these circumstances conflicts with
tikanga
Māori, resulting in outcomes that do not reflect tikanga or whānau
wishes. Important and difficult questions arise
about balancing respect for the
mana and wishes of an individual and obligations to family, whānau and
others.
- 1.2 Te Aka Matua
o te Ture | Law Commission (the Commission) recently reviewed relationship
property rights on separation.0F[1] In
the review of the Property (Relationships) Act 1976 (PRA review), we explained
that the context for dividing property on the death
of a partner is different to
the context for dividing property on separation as there may be tensions between
the competing interests
of all those potentially affected by the death of that
person. Those affected may include not only the surviving partner but children
and other family and whānau members of the deceased as well as other
people. To complete our review of the PRA, the Government
asked the Commission
to review the division of relationship property on death, along with claims that
can be made against the estate.
- 1.3 We have
considered parts of Aotearoa New Zealand’s succession law that have not
been comprehensively reviewed in decades.
Much of the key legislation was
drafted in the mid-20th century. Since that time, Aotearoa New Zealand has
undergone significant
social change, affecting the relationships New Zealanders
enter and what they think family means. The need for law-making to properly
consider the Crown’s obligations under te Tiriti o Waitangi | Treaty of
Waitangi is also better recognised by the Crown. The
law has not kept pace with
these changes or the reasonable expectations of New Zealanders.
- 1.4 This Report
sets out our findings and makes recommendations for change.
OUR REVIEW
- 1.5 The
terms of reference for the review of succession law were published in December
2019. They required us to consider who should
be entitled to claim property from
a deceased person’s estate, with a particular focus on the
deceased’s partner and
other members of the family. In particular, we
considered the following statutes:
(a) Property (Relationships) Act 1976.
(b) Family Protection Act 1955.
(c) Law Reform (Testamentary Promises) Act 1949.
(d) The intestacy regime in Part 3 of the Administration Act 1969.
- 1.6 The terms of
reference required us to consider how succession law should address areas of
particular concern to Māori. We
have not reviewed the regime for succession
to whenua Māori under Te Ture Whenua Maori Act 1993 but have considered
questions
relating to succession generally that may be of particular concern to
Māori. In doing so, we comment on aspects of Te Ture Whenua
Maori Act.
- 1.7 The terms of
reference did not include all aspects of administration and succession (such as
the Wills Act 2007 and the remainder
of the Administration Act), but we could
not consider entitlements to and claims against estates in isolation from these
other laws
and some of our recommendations therefore relate to them.
- 1.8 In April
2021, we published our Issues Paper and consultation website. This followed
extensive research and preliminary
consultation.1F[2] We received 216
submissions. This included 182 submissions from members of the public, 15
submissions from legal practitioners, academics
and other experts or
professionals and 19 submissions from organisations, including government
entities, law firms and community
organisations. We held a second wānanga
with tikanga and legal experts to consider our approach in the Issues Paper to
mattes
of tikanga. In addition, we met with several organisations and
individuals.
- 1.9 Throughout
the review, we have been supported by an Expert Advisory Group and have sought
guidance from the Commission’s
Māori Liaison Committee on those
matters of particular interest to Māori. Tai Ahu (Waikato-Tainui,
Ngāti Kahu (Te
Paatu)) has assisted us with our understanding of tikanga
and succession as we have prepared this Report, including undertaking interviews
with kaumātua, which we refer to in later chapters.
THE SUCCESSION SURVEY
- 1.10 Te
Whare Wānanga o Ōtākou | University of Otago (University of
Otago), funded through the Michael and Suzanne
Borrin Foundation, has surveyed
public attitudes and values towards succession issues (the Succession
Survey).2F[3] The Succession Survey
involved interviews with a nationwide, statistically representative sample of
the population, with “booster”
targets for Māori, Pacific
peoples and Asian populations. Interviewees were asked for their views on
matters such as:
(a) the importance of testamentary freedom;
(b) the rights of family members, particularly financially independent adult
children, to challenge the deceased’s will;
(c) who should inherit in an intestacy and in what proportions; and
(d) attitudes towards relationship property rights on death.
- 1.11 We refer to
the results of the Succession Survey throughout this Report.
MATTERS ADDRESSED IN THIS REPORT
- 1.12 This
Report is the culmination of a two-year review. We make 140 recommendations
addressing a range of issues.
- 1.13 In
developing these recommendations, we have recognised that reform can be achieved
in a variety of ways and that legislation
is not an exclusive
solution.3F[4] In considering each
issue, we have therefore also
considered:4F[5]
(a) whether the courts should be left to develop and determine the law on the
issue;5F[6]
(b) whether, instead of legislative reform, the issue could be addressed through
greater education of the public and professionals;
and
(c) whether the issue is a broader policy problem that might benefit from
separate examination.
- 1.14 We also
recognise that it is important when making law reform proposals to ensure, as
far as practicable, that they do not have
unintended consequences. Where we have
not identified significant practical issues with the current law, the potential
for introducing
unintended consequences may weigh against proposing reform.
- 1.15 In this
Report we discuss matters of capacity in terms of current law, including
suggesting that lacking capacity should be defined
consistently with the Trusts
Act 2019.6F[7] However, the Commission
has commenced its review of the law relating to adult decision-making capacity,
Ngā Huarahi Whakatau,
and we expect that recommendations from that review
will address whether capacity should be understood in a more nuanced way than
is
presently set out in law.7F[8]
- 1.16 Following
on from this chapter, this Report is organised into three parts:
(a) Part One examines the basis for good succession law in contemporary Aotearoa
New Zealand.
(b) Part Two addresses the entitlements to and claims against estates.
(c) Part Three considers making and resolving claims against
estates.
Part One: Good succession law in contemporary Aotearoa New
Zealand
- 1.17 Chapter
2 draws together the threads of what makes good succession law for contemporary
Aotearoa New Zealand, explaining the
foundation that underpins the
recommendations for reform we make in the following chapters. Importantly, we
conclude that kāwananatanga
should be exercised in a responsible manner in
relation to succession, including facilitating the exercise of tino
rangatiratanga
by Māori. We recommend in this chapter that a new statute
called the Inheritance (Claims Against Estates) Act (the new Act)
should be
enacted as the principal source of law applying to entitlements and claims
against an estate.
Part Two: Entitlements to and claims against
estates
- 1.18 Chapter
3 addresses how succession to taonga should be governed by tikanga Māori
rather than state law.
- 1.19 Chapter 4
addresses a surviving partner’s relationship property entitlements under
the deceased’s will or in an intestacy.
- 1.20 Chapter 5
considers the obligations of the deceased to family and whānau and what
claims for “family provision”
from the estate the new Act should
permit.
- 1.21 Chapter 6
examines what claims against an estate should be available in the new Act in
respect of the contributions a person
has made towards the deceased.
- 1.22 Chapter 7
considers how estates should be distributed when a person dies intestate.
Part Three: Making and resolving claims against
estates
- 1.23 Chapter
8 examines what property should be claimable under the new Act, the respective
priorities between entitlements and claims
under the new Act and what
anti-avoidance mechanisms the new Act should incorporate to access property that
may fall outside an estate.
- 1.24 Chapter 9
addresses how the new Act should provide for the court’s power to grant
individuals use and occupation orders
over an estate.
- 1.25 Chapter 10
considers how the new Act should provide for agreements people may make during
their lifetime that determine rights
against their estates when they die and
agreements by parties wishing to settle disputes.
- 1.26 Chapter 11
addresses the jurisdiction of the courts to hear and determine claims under the
new Act.
- 1.27 Chapter 12
considers the law and procedure that applies to the resolution of disputes in
court.
- 1.28 Chapter 13
considers the law and procedure that applies to the resolution of disputes out
of court.
- 1.29 Chapter 14
addresses the duties that should fall on personal representatives when claims
are made against an estate under the
new Act.
- 1.30 Chapter 15
examines cross-border elements to entitlements and claims against an estate.
- 1.31 Chapter 16
covers a range of other reform issues, including the need for education about
the law relating to succession, the
revocation rules under sections 18 and 19 of
the Wills Act when people enter or leave marriages or civil unions, the
court’s
power to validate wills under the Wills Act and the absence of
recognition of ōhākī in state law.
OUR TERMINOLOGY AND OTHER MATTERS
- 1.32 Throughout
this Report, we use several abbreviated or defined terms:
(a) PRA — Property (Relationships) Act 1976.
(b) FPA — Family Protection Act 1955.
(c) TPA — Law Reform (Testamentary Promises) Act 1949.
(d) TTWMA — Te Ture Whenua Maori Act 1993.
(e) Estate — the property of a deceased person that passes to their
personal representatives to be dealt with in accordance
with the
deceased’s will or the intestacy regime.
(f) New Act — the new statute called the Inheritance (Claims Against
Estates) Act we recommend should be enacted as the principal
source of law
applying to entitlements and claims against an estate in place of Part 8 of the
PRA, the FPA and TPA.
(g) Intestacy regime — the regime for the distribution of wholly or
partially intestate estates under Part 3 of the Administration
Act 1969.
(h) Partner — a person in a qualifying relationship under the PRA,
including a spouse, civil union partner or partner in a
de facto
relationship.
(i) Personal representatives — we use this term to refer to both
executors, who are appointed under a will to carry out the
terms of the will,
and administrators, who have been granted letters of administration in respect
of estates.
(j) PRA review — the Commission’s review of the PRA concluding in
the final report Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act
1976.8F[9]
(k) Relationship — for readability, we use the term
“relationship” unless we are referring to a specific relationship
type (marriage, civil union or de facto relationship).
(l) Succession Survey — the survey of public attitudes and values towards
succession issues carried out by Te Whare Wānanga
o Ōtākou |
University of Otago, Entitlements to Deceased People’s Property in
Aotearoa New Zealand: Public Attitudes and Values — A General
Population Survey.9F[10]
- 1.33 When
discussing te Tiriti o Waitangi | Treaty of Waitangi in this Issues Paper, we
use “the Treaty” as a generic
term that is intended to capture both
the Māori text (te Tiriti o Waitangi) and the English text (the Treaty of
Waitangi). When
we are referring to the Māori text only, we either use the
term “te Tiriti”, refer to “the Māori text”
or make
this clear in the context. When we are referring to the English text only, we
refer to the “English text” or
make this clear in the context. To
the extent that the principles of the Treaty, which have developed through
jurisprudence, substantively
reflect the rights and obligations arising from the
texts, the principles may also be captured by the term “the Treaty”.
Otherwise, we specifically refer to “the principles of the Treaty”
or to specific principles.
- 1.34 The Treaty
and key Māori terms and concepts used in this Report are described in
Chapter 2. Many kupu Māori are not
defined in the Report because their
meanings are well understood in contemporary Aotearoa New Zealand. We have used
simple in-text
definitions for those kupu Māori that are less well known.
- 1.35 When we
refer to or summarise submissions received on the Issues Paper, we use the
submitter’s language, with minor edits
if needed for readability. For
example, if a submitter refers to te Tiriti, we use that language irrespective
of our general approach
as set out above.
- 1.36 When we
cite an Act or its provisions that do not use macrons on kupu Māori, such
as TTWMA, we use the language as written
in the Act. Similarly, when quoting
submissions that do not use macrons, we use the language of the submitters
without change.
- 1.37 Many court
decisions under the PRA and FPA are anonymised through the use of fictitious
names or the use of parties’ initials.
Some decisions are not anonymised
yet are still subject to publication
restrictions.10F[11] To address
this, we have replaced the names of parties with initials when our discussion of
the facts of a case includes sensitive
information that could identify
vulnerable individuals.
Part One
GOOD SUCCESSION LAW IN CONTEMPORARY AOTEAROA NEW
ZEALAND
![2021_14507.png](2021_14507.png)
CHAPTER 2
Good succession law
IN
THIS CHAPTER, WE CONSIDER:
- the implications
of te Tiriti o Waitangi | the Treaty of Waitangi for this review;
- a framework for
considering te ao Māori and succession;
- the criteria for
good succession law in Aotearoa New Zealand; and
- the need for a
new Act addressing entitlements to and claims against estates.
INTRODUCTION
- 2.1 In
the Issues Paper we discussed developing good succession law at a general level
and with a focus on state law. We also acknowledged
the significance of
succession in te ao Māori and set out a framework for developing good
succession law from an ao Māori
perspective.11F[12]
- 2.2 The existing
state law of succession reflects societal attitudes and values prevalent at the
time the laws were drafted in the
mid-20th
century.12F[13] Since then, Aotearoa
New Zealand has undergone a period of significant social change. As we
identified in the Issues Paper, Aotearoa
New Zealand is more ethnically diverse,
there is increasing diversity of family arrangements and life expectancy is
progressively
increasing and projected to keep
increasing.13F[14] While tikanga
Māori has remained a constant as an independent source of rights and
obligations in te ao Māori and the first
law of Aotearoa, there is now
broader acknowledgement of its significance for Aotearoa New Zealand, including
under te Tiriti o Waitangi
| Treaty of Waitangi (the
Treaty).14F[15]
- 2.3 In this
chapter, we draw together these threads, explaining the foundation that
underpins the recommendations we make in the following
chapters for the reform
of succession law. Our understanding of contemporary public attitudes and values
has been informed by the
results of our consultation and the Succession
Survey.
CURRENT LAW
- 2.4 State
law of succession is a body of law that governs how a person’s property is
distributed on their death. State succession
law follows logically from the law
that recognises property rights during a person’s lifetime, such as rights
to ownership,
use and exclusion of others. These laws are well established in
Aotearoa New Zealand, reflecting the English law that developed in
the 18th
century largely as a product of the rise of liberal
individualism.15F[16] Croucher and
Vines have observed that:
16F[17]
- The emphasis on
the right to do what one liked with one’s property reflected the social
theory of the time — the importance
of the individual, the emphasis on
free will, the importance of contract, and the rise of capitalism.
- 2.5 The most
common means of succeeding to the property of a deceased is by being named a
beneficiary of their will. A will is a legal
document that sets out the wishes
of the will-maker for the distribution of their estate after they die. Where
there is no will,
the Administration Act 1969 sets out rules for how a
person’s estate is to be distributed (the intestacy
regime).17F[18]
- 2.6 The
deceased’s will or the intestacy regime only governs the distribution of
the deceased’s estate. An estate does
not include any property the
deceased gave away during their lifetime, such as gifts or property the deceased
settled on trust. Nor
does an estate include property that passes independently
of the will or intestacy regime, such as jointly owned property that passes
to a
co-owner by survivorship. Te Ture Whenua Maori Act 1993 provides a statutory
regime for succession to Māori land.
- 2.7 State
succession law in Aotearoa New Zealand provides an individual with considerable
freedom to choose what will happen to their
property on their death. Their
decisions will be reflected in the terms of their will or the way they structure
their affairs to
include or exclude certain property from their estate. This is
sometimes referred to as testamentary freedom.
- 2.8 Testamentary
freedom is not absolute in existing succession law. A key competing objective of
succession law has been to ensure
that property passes from the deceased to
their family members and others to whom they owe obligations. The law provides
certain
individuals with entitlements to, or the right to claim against, the
deceased’s estate despite how the deceased may have wanted
their property
to be distributed. The primary entitlements and claims are:
(a) the entitlements of the deceased’s surviving partner to relationship
property under the Property (Relationships) Act 1976
(PRA);
(b) the rights of the deceased’s family to claim provision from the estate
under the Family Protection Act 1955 (FPA) for their
proper maintenance and
support;
(c) the rights of individuals who may have contributed to the deceased for which
the law provides a remedy under the Law Reform (Testamentary
Promises) Act 1949
(TPA) or through the common law or equity; and
(d) the entitlements of family members to the deceased’s property if the
deceased died intestate under the Administration Act.
NGā TIKANGA
- 2.9 Succession
is an important matter for
Māori.18F[19] In te ao
Māori, succession reflects the importance of whānau. Kin relationships
together with their inherent reciprocal
obligations provide the overall context
for understanding succession from an ao Māori
perspective.19F[20]
- 2.10 In the
Issues Paper, we said that, for present purposes, tikanga is constitutionally
significant to the development of the law
in four mutually reinforcing respects:
(a) First, as an independent source of rights and obligations in te ao
Māori and the first law of
Aotearoa.20F[21]
(b) Second, in terms of the Treaty rights and obligations that pertain to
tikanga.
(c) Third, where tikanga values comprise a source of the New Zealand common
law21F[22] or have been integrated
into law by statutory
reference.22F[23]
(d) Fourth, to give effect to Aotearoa New Zealand’s international
obligations in relation to Māori as indigenous people,
including under the
UNDRIP.23F[24]
- 2.11 Professor
Patu Hohepa emphasised the need to revisit tikanga Māori in order that its
part in succession law reform is understood.
He explained the centrality of
tikanga in the following
terms:24F[25]
- E kore e
whakawaia
- E whakangaro i
te tikanga
- Kei hiiritia e
te ture
- Waiho ki te
ture tangata
- 2.12 Hohepa
observed that, while surface changes may occur to things such as land tenure or
social structures, they do so without
sacrificing deep cultural principles
because they have the underpinnings of cultural strength and
continuity.25F[26]
- 2.13 In our
Issues Paper, we said that understanding the relationships between Māori
and the tangible and intangible is important.
We noted that certain tangible
items may be more important to the collective than the individual. We also
observed that, while succession
in te ao Māori is also concerned with the
intangible, we did not intend to consider succession to the intangible in this
review.
- 2.14 We also
described tikanga relevant to succession. We said it was our attempt to identify
principles that must be understood in
order to consider an ao Māori
perspective, recognising that our discussion did not seek to be a comprehensive
description.
- 2.15 Additionally,
Māori, both individually and collectively, interpret tikanga in their own
ways and place varying degrees of
importance on particular
values.26F[27] The
values:27F[28]
- ... do not
represent a hierarchy of ethics, but rather a koru, or a spiral, of ethics. They
are all part of a continuum yet contain
an identifiable core.
- 2.16 We have
heard that some Māori prefer not to discuss tikanga as involving values or
principles. Rather, tikanga is just tikanga.
We acknowledge that view but have
found that we need to refer to values or principles so that later in this
chapter we can articulate
what we mean by weaving new law. In taking this
approach, we are reassured by the expert evidence of Dr Te Kahautu Maxwell when
he
said:28F[29]
- There are a
number of core values that underpin tikanga: whanaungatanga; mana; tapu;
manaakitanga; and aroha. There are iwi variations
of the core values, and
therefore the above list is how I understand tikanga and see tikanga to being.
Therefore, these core values
are not prescribed and may differ from iwi to iwi.
These core values are like a whariki; a woven mat, they must go together for
tikanga
to stand up. You must understand the core values for you to understand
tikanga, because it is these core values that instruct you
how to behave in the
correct manner, which is tikanga.
- 2.17 We set out
below the tikanga we understand to be relevant to succession, as described in
the Issues Paper.
Tika
- 2.18 Hohepa
has described tika as the “major principle” that overarches and
guides formalities and practice in Māori
society.29F[30] Tika has a range of
meaning from “right and proper, true, honest, just, personally and
culturally correct or proper”
to
“upright”.30F[31] It
forms the basis of the word tikanga. The practice of a particular tikanga
therefore needs to be correct and right, or tika.
Whanaungatanga
- 2.19 Whanaungatanga
has been described as “the glue that held, and still holds, the system
together”.31F[32] It has been
said to be:32F[33]
- ... the
fundamental law of the maintenance of properly tended relationships. The reach
of this concept does not stop at the boundaries
of what we might call law, or
even for that matter, human relationships. It is also the key underlying
cultural (and legal) metaphor
informing human relationships with the physical
world — flora, fauna, and physical resources — and the spiritual
world
— the gods and ancestors.
- 2.20 Whanaungatanga
includes the ideas that, in te ao Māori, relationships among people and
with the natural and spiritual worlds
are fundamental to communal wellbeing, and
all individuals owe certain responsibilities to the
collective.33F[34]
- 2.21 The idea of
belonging, which underpins the Māori perspective on succession, has its
basis in whanaungatanga. Harry Dansey
writes that the Māori attitude to
death is influenced by the depth of feeling for relations. Not only is the
notion of family
extended but so are the rights and responsibilities of
relationship.34F[35] Rights to
belong to the hapū and participate in resources are crucial from a
whanaungatanga perspective and help promote a sense
of belonging.
Whakapapa
- 2.22 Māori
history contains a detailed account of Māori origins from
Papatūānuku and Ranginui to Tāne-mahuta,
Tangaroa,
Tūmatauenga, Haumia-tiketike, Tāwhiri-mātea, Rongo and their
siblings across many generations and significant
figures and stories to the
tangata whenua of today.35F[36] This
detailed history shows the power and importance of whakapapa to the Māori
world view.
- 2.23 Whakapapa
literally means “to place in
layers”.36F[37] It has been
described by Sir Apirana Ngata
as:37F[38]
- ... the process
of laying one thing upon another. If you visualise the foundation ancestors as
the first generation, the next and
succeeding ancestors are placed on them in
ordered layers.
- 2.24 Whakapapa
therefore details the nature of the relationships between all
things.38F[39] Because all things
come from Papatūānuku and Ranginui, all things are connected through
whakapapa.39F[40]
- 2.25 Whakapapa
is crucial to succession for Māori because it underpins connections to
whānau, tribal groups and
whenua.40F[41] We have heard that a
primary function of succession for Māori is to maintain whakapapa
connections to their whenua, whānau,
tūpuna (ancestors) and atua
(revered ancestors or deities).
Mana
- 2.26 In
a narrow sense, mana can be defined as “the integrity of a person or
object”.41F[42] In a wider
sense, it is a measure of all things that are gathered from “ancestral and
spiritual inheritance, prestige, power,
recognition, efficacy, influence,
authority and personal
ability.”42F[43]
- 2.27 It is often
said there are three aspects of personal mana. Māori Marsden described them
as mana atua (God-given power),
mana tūpuna (power from the ancestors) and
mana tangata (authority derived from personal
attributes).43F[44]
- 2.28 Although
these aspects to mana are distinct (and reflect the different ways mana may
manifest itself), it is said that the source
of all mana is the atua
Māori.44F[45] The
whakataukī “[k]o te tapu te mana o ngā kāwai
tūpuna” (“tapu is the mana of the kāwai
tūpuna”) demonstrates that mana shares a very strong positive
connection with tapu.45F[46]
- 2.29 Mana is
important to succession for two reasons. What happens after death can have an
impact on the mana of the deceased and
the
collective.46F[47] Mana tūpuna
demonstrates the importance of the mana of those who have died to those who are
living today. The mana of the deceased
can also impact on how closely their
wishes are followed after death.
- 2.30 Associate
Professor Khylee Quince has observed that, in daily life, mana supported the
institution of tapu as the basis of property
entitlements. Quince
states:47F[48]
- Personal
property rights were acquired through the extension of personal tapu to objects.
The degree of tapu signified the degree
of entitlement to one person and the
degree of prohibition against others. Mana was the means by which an individual
could do this.
Tapu and noa
- 2.31 Tapu
is a principle in te ao Māori that acts as a “corrective and coherent
power”.48F[49] Hohepa has
defined it as:49F[50]
- ... the essence
of sanctity, cultural protection, sacredness, set apartness. It is not only a
possible source of protection for all
things, it also has a ‘potential for
power’.
- 2.32 Similar to
mana, tapu can be traced to the tūpuna, then to the atua Māori, and
then to Ranginui and
Papatūānuku.50F[51] This
gives rise to an “intrinsic tapu” that all people, places and things
possess by virtue of their connection to the
atua
Māori.51F[52] A hara
(violation, offence) against tapu demand utu (reciprocity, retribution) for the
hara. Because of these consequences, tapu
is sometimes seen as a form of social
control based on the avoidance of
risk.52F[53]
- 2.33 If tapu has
the “potential for power”, then noa acts as a counter or antidote to
that: it values the importance of
ordinary, everyday human
activity.53F[54] However, it is not
useful to think of noa as the opposite of tapu or the absence of tapu. Rather,
noa indicates that, following an
incursion on tapu, a balance has been reached,
a crisis is over and things are back to normal
again.54F[55] One way to think of
tapu and noa might be as complementary opposites operating on a spiritual level
to restore balance.
- 2.34 Tapu is
relevant to succession because death and things closely associated with death
are highly tapu.55F[56] Taonga
(things valued and treasured) and other items that were in possession of the
deceased may be tapu by association or have their
own intrinsic tapu by
association with the atua Māori. Whakapapa is intrinsically tapu because it
connects people directly to
the atua Māori and also to their mate (dead).
Maintaining whakapapa connections and ensuring taonga and other items are
treated
appropriately are therefore vitally important, and sanctions may follow
if the tapu of whakapapa is breached.
Utu
- 2.35 Utu
establishes principles and protocols in which relationships are created and
maintained. It can be thought of as “compensation,
or revenge, or
reciprocity”.56F[57] Utu is
relevant to:57F[58]
- ... both the
positive and negative aspects of Māori life governing relationships within
Māori society. It was a reciprocation
of both positive and negative deeds
from one person to another. Utu was a means of seeking, maintaining and
restoring harmony and
balance in Māori society and
relationships.
- 2.36 Utu is
closely linked with mana and tapu. Where utu is sought, the take (cause) was
usually a breach of tapu or an increase or
decrease in
mana.58F[59] The extent and form of
utu depends on the circumstances, making it highly contextual.
- 2.37 Utu can be
linked to the analytical framework of take-utu-ea. The framework measures
breaches of tikanga that require certain
action to be taken in order to resolve
the matter.59F[60]
- 2.38 Utu is
relevant to succession, because if there has been a take or hara that warrants
utu, the obligation to respond does not
die with the individual. That
responsibility belongs to the collective, so if the individual dies, there is no
ea (fulfilment,
resolution).60F[61]
Kaitiakitanga
- 2.39 Kaitiakitanga
is an obligation on those who have mana to act unselfishly, with right mind and
heart and with proper
procedure.61F[62] Mana and
kaitiakitanga operate together as “right and
responsibility”.62F[63]
Kaitiakitanga obligations exist over all
taonga.63F[64] Rights to resources
are dependent on maintaining kaitiakitanga obligations over that
resource.64F[65] Kaitiakitanga might
thus be described as the reciprocal obligation to care for the wellbeing of a
person or resources.65F[66]
- 2.40 Maintaining
kaitiakitanga obligations is vital to fostering a sense of belonging. Ensuring
that kaitiakitanga rights and obligations
can pass down to the next generation
is a crucial part of succession in te ao Māori.
Aroha and manaakitanga
- 2.41 Aroha
is usually understood as a literal translation of love. However, the meaning is
wider. Hohepa describes aroha as having
“a wide range of meaning from
compassion and love to concern and
sorrow.”66F[67] Aroha is an
admirable attribute that has lasting effect and conveys that the values of care,
respect and affection are
important.67F[68] Dr Cleve Barlow
observes that “[a] person who has aroha for another expresses genuine
concern towards them and acts with their
welfare in mind, no matter what their
state of health or
wealth”.68F[69] Aroha
underpins the strengthening of kin relationships, including in the rituals of
tangihanga.69F[70]
- 2.42 Manaakitanga,
literally translated, means to care for a person’s
mana.70F[71] Manaakitanga is
required no matter what the circumstances might be, so even if there is no aroha
in the situation, the obligation
still
applies.71F[72] An obvious place
where manaakitanga is important is looking after guests, but the obligation is
always present.72F[73]
- 2.43 Aroha and
manaakitanga are relevant to succession because, through these values, other
values can be upheld.
Results of consultation
- 2.44 In
the Issues Paper, we asked if we had appropriately identified the tikanga
principles relevant to succession and whether there
were any we had
misunderstood or not included.
- 2.45 Few
submitters to the Issues Paper commented directly on the tikanga principles we
had identified. However, those that did, including
Professor Jacinta Ruru,
thought the tikanga principles were appropriate for succession. Several
submitters acknowledged that there
are differences in the practice of tikanga
between the many whānau, hapū and iwi throughout the country.
- 2.46 Te Kani
Williams observed that the Māori concept of whānau and what
constitutes whānau, in relation to who ought
to receive property on the
death of a person, is considerably distinct from that of “family”.
Williams said that concepts
of kaitiakitanga, manaakitanga and whanaungatanga
need to be at the forefront of these deliberations for Māori.
- 2.47 Chapman
Tripp emphasised the importance of whanaungatanga in tikanga-based succession
processes, which acknowledges the familial
and relational ties that exist in te
ao Māori. Chapman Tripp said that whanaungatanga, most simply, is the
rights, responsibilities
and expected mode of behaviour that accompany
relationships. While these are usually kinship relationships, the term has been
widened
by modern Māori to include kin-like reciprocal relationships among
people generally.
- 2.48 On the
website, we asked if tikanga Māori was important to submitters when it came
to succession (leaving aside whenua Māori)
and, if so, how tikanga affects
the way they think about succession.
- 2.49 One website
submitter, Raaniera Te Whata, explained the significance of succession as a
transfer of ideas and a process:
- For whānau
and hapū, ngā uri whakatupu (future generations) are a key focus.
Succession planning — ensuring
the transference of tikanga (established
patterns of behaviour), mātauranga (knowledge) and taonga katoa (treasured
possessions
including precious objects, customs, values) are central tenets.
Employing tikanga generally but also in succession issues is to
use a
collectivist approach to identify the how (i.e. the methodology for setting
values and standards) in any given situation. The
socio-culturally measured
options — considered in community with the wider whānau/hapū are
ultimately focused on
rebuilding relationships. This is an inclusive and
consensus making process. Rebuilding tikanga based relationships in issues of
succession provides a different way of approaching situations that are often
challenging and sensitive (e.g. sibling successor conflicts,
disparate
whānau goals).
- 2.50 Around a
third of website submitters answered the question about whether tikanga
Māori was important to them. Of those submitters,
most agreed that tikanga
was important to them. Of those agreeing, around half identified as Māori.
Comments from these submitters
included that Māori should be able to choose
tikanga or state law, that tikanga should be incorporated into the
“consciousness
of the country” and that tikanga should be available
to all New Zealanders as a less adversarial approach in most areas of
life,
encouraging dialogue and community.
- 2.51 Some
submitters said tikanga was not important to them (only one of whom identified
as Māori, and they commented that there
should be one law for all). Some
expressed the view that state law must prevail in matters of succession and that
there should be
one clear law for the whole country. Others commented that wills
that followed tikanga should be respected. Some noted that the application
of
tikanga was a matter for Māori.
- 2.52 Tikanga
affected the way submitters thought about succession in various ways. Some
emphasised that tikanga should be available
for Māori to address succession
matters and that Māori should be able to choose tikanga or state law. Some
submitted that
succession law should recognise a Māori perspective,
especially in relation to whenua Māori. Some commented on the need
for
clarity and certainty to minimise disputes as disputes are harmful to all
families and whānau.
- 2.53 One
submitter, Raewyn Kapa, explained the significance of tikanga to her in this
way:
- It affects the
way my intent aligns tika (rightfully), pono (logically) and aroha (caringly and
with compassion) to my estate and
its distribution at death. Tikanga for me is
also about my kaitiakitanga duties to my most loved and cherished ones I leave
in Te
Ao with resources, gifts, finances and land for their futures and
livelihoods. With land as an example, it’s significant for
me that the
shares I succeed from both of my parents remain within my children’s
succession and their children for the future.
It affects certainty, security and
kaitiakitanga for the future so all whenua remains in our possession and theirs
and so forth.
It’s critical that the laws of today keep this intact and
ensure tikanga Māori ture and statutory laws keep this protected
and to
never have it broken for individualism. It’s very important. Lastly, I
think tikanga as a body of ture at law needs
to be developed as its own
framework to reflect iwi differences of traditions, pedagogies and
epistemologies in that we’re
not a homogeneous group of
“sameness”, and that one iwi tikanga may not be nor hold the same
tikanga as another. For
example, male primogeniture and female primogeniture
practices and beliefs, blended families, hierarchy, status and those [who] take
that in the quest for being right, King or Queen, can become destructive to
families and relationships.
TE TIRITI O WAITANGI | TREATY OF WAITANGI
- 2.54 In
the Issues Paper, we said te Tiriti o Waitangi | Treaty of Waitangi (the Treaty)
is a foundation of government in Aotearoa
New
Zealand.73F[74] As recorded in
Cabinet guidance:74F[75]
- The Treaty
creates a basis for civil government extending over all New Zealanders, on the
basis of protections and acknowledgements
of Maori rights and interests within
that shared citizenry.
- 2.55 The Treaty
was signed in 1840 by representatives of the British Crown and rangatira
representing many, but not all,
hapū.75F[76] There is a
Māori text and an English text. There are differences between the two
texts, as we explain below. The meaning and
significance of each text, the
relationship between them and whether they can or should be reconciled through
interpretation and
the elaboration of Treaty principles are the subject of
significant debate, scholarship and judicial
consideration.76F[77] We acknowledge
these ongoing debates as context for considering the implications of the Treaty
for our review of succession law.
- 2.56 In the
Māori text, article 1 provides that Māori rangatira grant the Crown
kāwanatanga, the right to govern, (ka
tuku rawa atu ki te Kuini o Ingarani
ake tonu atu – te Kawangatanga katoa o o ratou wenua). Article 2 provides
that the Crown
will protect the exercise of tino rangatiratanga over lands,
villages and all things valued and treasured (ko te Kuini o Ingarani
ka wakarite
ka wakaae ki nga Rangatira ki nga hapu – ki nga tangata katoa o Nu Tirani
te tino rangatiratanga o o ratou wenua
o ratou kainga me o ratou taonga katoa).
Tino rangatiratanga has been described as the exercise of the chieftainship of
rangatira,
which is unqualified except by applicable
tikanga.77F[78]
- 2.57 Article 1
of the English text provides that Māori rangatira cede the sovereignty they
exercise over their respective territories
to the Crown, while article 2
guarantees to Māori full exclusive and undisturbed possession of their
lands and other properties.78F[79]
- 2.58 Under
article 3 of the English text, the Crown imparted to Māori its protection
as well as all the rights and privileges
of British subjects. A similar
undertaking was conveyed in article 3 of the Māori text, which provides
that the Crown will care
for Māori and give to Māori the same rights
and duties of citizenship as the people of
England.79F[80] Article 3 has been
understood as a guarantee of equity between Māori and other New
Zealanders.80F[81]
- 2.59 In the
Issues Paper, we also observed that five years before the Treaty was signed, in
1835, a number of northern rangatira signed
He Whakaputanga o te Rangatiratanga
o Nu Tireni | the Declaration of Independence of the United Tribes of New
Zealand (He Whakaputanga).
He Whakaputanga was a declaration of the sovereignty
and independence of those rangatira. The Tribunal has considered the
“striking
absence” of any record of explicit discussion about its
ongoing relevance or its relationship with the
Treaty.81F[82] The Tribunal has also
considered the failure of the British to explain why and how the Treaty
nullified He Whakaputanga to be
significant.82F[83]
- 2.60 At the time
of signing the Treaty, Crown representatives made oral undertakings and
assurances to Māori, including an undertaking
to respect Māori customs
and law.83F[84] The Tribunal has
concluded that these also form part of the agreement
reached.84F[85] Not all hapū
were represented among the rangatira signatories to the Treaty. The Crown has
taken the position that the benefit
of the promises it made in the Treaty
extends to all Māori, whether or not they signed the
Treaty.85F[86]
- 2.61 The
overwhelming majority of Māori signatories signed the Māori text
rather than the English text.86F[87]
It has long been acknowledged that the more than 500 rangatira who signed would
have done so following their debate and discussion
in te reo Māori. While
some signed the English sheet, most if not all of them would have relied on the
oral explanation of the
Treaty’s terms in te reo Māori, which likely
reflected te Tiriti. It is noteworthy that on behalf of the British Crown,
Lieutenant-Governor William Hobson signed te
Tiriti.87F[88]
- 2.62 The
Tribunal has mentioned these matters in various reports. For example, the
Tribunal has said that precedence, or at least
considerable weight, should be
given to the Māori text when there is a difference between it and the
English text, given the
circumstances mentioned above and because this was
consistent with the contra proferentem rule of the law of treaties that,
where there is ambiguity, a provision should be construed against the party that
drafted or proposed
the relevant
provision.88F[89]
- 2.63 With
respect to articles 1 and 2 of te Tiriti, the Tribunal has
observed:89F[90]
- The guarantee
of tino rangatiratanga requires the Crown to acknowledge Māori control over
their tikanga, resources, and people
and to allow Māori to manage their own
affairs in a way that aligns with their customs and values.
- 2.64 Within te
ao Māori, rangatiratanga can embody the authority of a rangatira but also
that of the people, which, in the context
of this review, includes whānau
and hapū. It involves the exercise of mana in accordance with and qualified
by tikanga
and its associated kawa and, through tikanga, the managing of a
dynamic interface between people, their environment and the non-material
world.90F[91] It is the substance of
this rangatiratanga that needs to be upheld and not interfered with through the
guarantee of tino rangatiratanga.
In effect, te Tiriti envisages the
co-existence of different but intersecting systems of political and legal
authority.91F[92]
- 2.65 Rangatiratanga
is exercised within te ao Māori every day and independently of state law,
in accordance with tikanga Māori.
However, in some situations, consistency
with te Tiriti may require that provision for the exercise of tino
rangatiratanga be made
in legislation. Implicit in this is that te Tiriti
requires careful thought about what responsible kāwanatanga involves.
- 2.66 In the
Issues Paper, we said that this approach to articles 1 and 2 of te Tiriti allows
an end to debating the different texts
in an effort to understand what was
exchanged between Māori and the British and how the wording of each of the
texts should
be qualified.92F[93]
Instead, it focuses on the relationship between tino rangatiratanga and
kāwanatanga and allows us to ask how kāwanatanga
can be responsibly
exercised in specific contexts, including how the exercise of tino
rangatiratanga might be facilitated.
- 2.67 We also
discussed the Treaty principles, saying that they have become important in
understanding the Treaty and that they have
an extensive history in the Tribunal
and the courts. We noted that the Tribunal has explained that, although its
statutory role is
to inquire into the consistency of the Crown’s acts and
omissions against the Treaty principles, this “does not mean
that the
terms [of the Treaty] can be negated or
reduced.”93F[94] Rather, the
principles “enlarge the terms, enabling the Treaty to be applied in
situations that were not foreseen or discussed
at the
time.”94F[95] We also
recognised that some regard the Treaty principles as distorting or diminishing
the clear terms of the Māori
text.95F[96] We said that this
review engages in particular the principles of partnership, active protection
and “options” (Māori
having choices or options available to
them).
Results of consultation
- 2.68 In
the Issues Paper, we asked about the role of the Treaty in the review of
succession law and whether submitters agreed with
our approach. There were no
questions on the website that directly addressed the Treaty, although some
submitters mentioned it in
answer to other questions.
- 2.69 Several
submitters to the Issues Paper supported our view that the Treaty was an
important aspect of this review. These submitters
were Te Hunga Rōia
Māori o Aotearoa (THRMOA), Te Kāhui Ture o Aotearoa | New Zealand Law
Society (NZLS), Ngā
Rangahautira, Professor Jacinta Ruru, Te Kani Williams,
Chapman Tripp, MinterEllisonRuddWatts, Succeed Legal, Citizens Advice Bureau
(CAB), Katie Murray, and the joint submission from Michael Reason and Azania
Watene. Some members of the Family Law Committee of
Auckland District Law
Society (ADLS) also agreed that the principles and objectives of the Treaty have
a role for this review.
- 2.70 Several
submitters, including NZLS, Chapman Tripp and Murray, agreed with our approach
to implementing the Treaty in this review.
NZLS observed that the Issues Paper
contained an excellent, well-researched and balanced summary of the position
regarding te Tiriti
and the relationship between the Crown and Māori.
Chapman Tripp agreed with our approach in implementing the relevant text of
te
Tiriti and its aspirations throughout this review.
- 2.71 Ruru and
Williams supported our focus on the relationship between tino rangatiratanga and
kāwanatanga, asking how responsible
kāwanatanga might be exercised in
specific contexts, including how the exercise of tino rangatiratanga might be
facilitated.
Williams said, however, that articles 1 and 2 of te Tiriti preserve
and recognise the rangatiratanga of Māori in Aotearoa and
from that
recognition flows the exercise of rangatiratanga, which the Crown is obligated
to protect. Williams also submitted that
consistency with te Tiriti should be
implicit in legislation in order to provide consistency between te Tiriti and
state law.
- 2.72 Some
submitters, including CAB, and Reason and Watene, supported the integration of
the principles of te Tiriti into succession
law and, in particular, the ability
to allow for tikanga to determine succession where this is what whānau
want. Conversely,
others, including Williams and Murray, preferred to focus on
te Tiriti and not the English text or the principles developed.
- 2.73 Some
members of the Family Law Committee of ADLS considered that the Treaty should
not have a role for this review of succession
law because, broadly speaking, the
review concerns the dynamics of inter-family relationships and the moral duties
and obligations
between generations that may be tailored by cultural issues such
as tikanga and whakapapa. These members said that, because most
people utilise
their income and resources for their and their immediate family’s use and
benefit and as individuals acquire
and dispose of assets, the distribution of an
estate should reflect the Western concept of unilateral ownership and disposal
of property
and be governed by statute and state courts.
- 2.74 Jan
McCartney QC said that, while supporting the principles and objectives of the
Treaty, in her view, succession law is about
inter-family relationships and
moral duties associated with those relationships. In her view, the values that
define moral duty include
cultural issues that are not dissimilar in tikanga
Māori and tikanga Pākehā, and these values need to be reflected
in succession law.
OUR FRAMEWORK FOR CONSIDERING TE AO MāORI AND
SUCCESSION
- 2.75 In
the Issues Paper, we identified three broad ways to consider law reform in
relation to te ao Māori and succession:
(a) Allow tikanga Māori to determine succession matters for Māori,
without state law involvement.
(b) Remove taonga from succession law and apply tikanga.
(c) Weave together the values of tikanga and state law to create better law for
all.
- 2.76 We said
that a common theme in all approaches is what role state law should have in
facilitating any reform. Any law reform would
need to be supported by
appropriate dispute resolution mechanisms, including how to bring tikanga
Māori into the resolution
process.
- 2.77 We asked
for feedback on whether the application of state law to succession is a problem,
whether tikanga Māori should govern
succession for Māori (and, if so,
how that might happen in practice) and what the role of state law would be.
- 2.78 On the
website, we asked whether our laws should do more to acknowledge tikanga and
what submitters thought about the three approaches
outlined above.
Results of consultation
Issues Paper submissions
- 2.79 Submitters
to the Issues Paper who commented on the framework overall were generally
supportive of it. THRMOA observed that the
Commission’s approach is
“ground-breaking”, and that it is a difficult task to recommend
reforms to succession
law that appropriately and adequately address the place of
tikanga, are consistent with te Tiriti and provide necessary consistency
and
certainty for individuals and whānau. However, THRMOA also said that the
exclusion of whenua Māori from the scope of
this review is unsatisfactory,
expressing concern that, given the significance of whenua Māori for
Māori, its exclusion
from the review potentially undermines aspects of the
review overall. Ngā Rangahautira and Chapman Tripp shared this
concern.
- 2.80 Submitters
expressed a range of views about the role state law should play in succession
matters for Māori. NZLS submitted
that it is the role of state law to
provide the framework within which succession disputes are determined. This
would include a defined
way for a claim to be initiated and a pathway for
resolution, having regard to the cultures and ethnicities of the parties, and
ensure
resolution is final and binding, and enforceable through the court
system. NZLS suggested that a practical balance might be achieved
through having
a judicial “gateway” to determine whether the dispute needs to be
dealt with under tikanga and ao Māori
and/or incorporating some aspects of
tikanga and ao Māori in the general law applying to all. NZLS thought that
consideration
should also be given to making provision in the new Act to
“opt in” or “opt out” of a tikanga approach to
succession law.
- 2.81 ADLS
submitted that it is the role of state law to promote responsibility by one
generation to its descendants, including through
the passing of wealth. Jan
McCartney QC said the role of state law is to identify, as the purpose of
succession, the rights and needs
of the next generation and the principles on
which their inheritance should take place.
- 2.82 Submitters
also said that state law can facilitate space for tikanga to operate. Chapman
Tripp said the role of state law now
is to give space and authority to tikanga
Māori to operate meaningfully within the lives of whānau Māori
who wish
to reclaim their tikanga.
- 2.83 Several
submitters discussed the importance of Māori having the right to choose how
their succession matters are resolved.
Ben Ngaia (in an interview with Tai Ahu)
said this is important because it provides greater choice and empowerment to
Māori,
which is consistent with the Treaty and the aspirations of the
Treaty relationship to be realised. Chapman Tripp said Māori
should have
the right to decide the means by which succession issues are resolved. This
could be a tikanga-based process or a state
law process at the time of a death
or in a will. Chapman Tripp also noted that, in any case, a grieving period
should be provided
to the whānau kirimate (immediate whānau of
deceased) before having to make such an election in the case of a mate (death).
- 2.84 MinterEllisonRuddWatts
and Succeed Legal supported a role for tikanga Māori in succession if
Māori thought this desirable
and said further consultation with Māori
should determine how this would happen in practice. Morris Legal agreed further
work
in this area was needed. ADLS submitted that, if all parties whakapapa as
Māori, tikanga could govern succession but it would
be preferable that
there be an option for Māori that state law applies. Some members of the
Family Law Committee of ADLS thought
that the new Act should provide that,
whenever Māori have expressed in writing the wish that tikanga or state law
govern succession
to their deceased estate, that wish should be respected and
implemented.
- 2.85 Community
Law Centres o Aotearoa (Community Law) noted the difficulty for Māori in
engaging with the legal system when a
whānau member dies. Māori
already have to navigate two separate legal processes: the general law of
succession and te Kooti
Whenua Māori | Māori Land Court processes.
Separating out taonga potentially creates a third parallel process. Community
Law said this is contrary to a communal and holistic view of all property
including land, taonga and other chattels, as envisaged
by te Tiriti.
- 2.86 Several
submitters, including THRMOA, NZLS, ADLS and Te Ripowai Higgins (in an interview
with Tai Ahu), emphasised the need for
certainty and predictability in
succession law.
- 2.87 Only some
submitters to the Issues Paper commented directly on the approaches outlined
above. THRMOA, Te Kani Williams and Community
Law were the only submitters to
directly comment on the first option to have tikanga Māori determine
succession matters for
Māori without state law involvement. Williams
expressed his support for the approach. Community Law raised questions about how
this approach would work in practice and observed that state law should not
necessarily be the default position.
- 2.88 THRMOA
submitted that, while this approach appears the most ideal because it offers
Māori options, it is also the most complicated
in terms of an
interrelationship between the two systems of law. THRMOA thought the Commission
should have grappled with the issues
arising from this approach, including
dealing with the questions of who, according to tikanga, should decide whether
tikanga or state
law was applicable and the constitutional questions that arise
from fundamental differences between the two legal systems. THRMOA
agreed that
the Issues Paper correctly acknowledged that rights in te ao Māori come
with obligations and that the mana of the
individual continues to be a key
consideration, leading to potential tension between the right of a successor to
choose a system
that may not reflect the wishes of the deceased. THRMOA noted
that there would need to be a dispute resolution process to resolve
disputes and
determine the appropriate approach for the whānau.
- 2.89 THRMOA said
that the second approach, where succession to taonga is governed by tikanga, is
consistent with mana motuhake for
Māori. THRMOA considered that this
approach is positive but not without risks relating to further confusion about
the meaning
of taonga and who was able to claim something was a taonga as well
as the risk that this would generate disputes, which was particularly
concerning
during a time of grieving. THRMOA suggested having a barred period for engaging
in disputes to ensure people have the
time to grieve and consider their options
clearly. Ngaia (in an interview with Tai Ahu) supported this approach. ADLS
agreed that
the application of state law to taonga is a problem.
- 2.90 Several
other submitters favoured the succession to taonga being governed by tikanga,
including Community Law and Chapman Tripp.
Further submissions on succession to
taonga are discussed in Chapter 3.
- 2.91 The third
approach, weaving better law for all, was the subject of several submissions.
Professor Jacinta Ruru supported this
approach, as it is explained in more
detail in Chapter 8 of the Issues Paper. She observed that it engages
respectfully and thoughtfully
with tikanga Māori in as much depth as is
readily possible and that the emphasis on whanaungatanga, manaakitanga and aroha
made
sense.
- 2.92 THRMOA also
supported this approach in principle but was concerned at what this would look
like in practice. THRMOA identified
risks that tikanga is subsumed into state
law and is divorced from its broader cultural context and that considerable
power is placed
in the hands of judges to determine the meaning and content of
Māori words and tikanga principles. THRMOA also said it was not
clear what
the Commission means when it refers to the values of tikanga compared with
tikanga Māori and expressed concern that
this approach could result in a
watering down of tikanga as seen in state law generally. Nonetheless, THRMOA
thought that this approach
minimises some of the concerns that arise in the
other two approaches regarding conflicts between state law and tikanga.
- 2.93 Ngaia (in
an interview with Tai Ahu) observed that this approach seemed ambiguous and that
clarity would be needed on how to
apply this approach and what it would
practically mean. Community Law asked how tikanga would be incorporated into
state law and
whether mana whenua want the courts to be able to make decisions
or recommendations as to tikanga.
- 2.94 Chapman
Tripp submitted that recent jurisprudence demonstrates that it is no longer
necessary to consider state law and tikanga
as distinct and mutually exclusive
systems of law. The momentum of recent cases and academic commentary confirms
that tikanga Māori
is an integral part of the law of Aotearoa and that
values such as mana, whakapapa and whanaungatanga should inform the development
of the law. Chapman Tripp submitted that tikanga is derived from a segment of
the wider pool of mātauranga Māori (the accumulated
knowledge and
intellectual property of Māori acquired over generations) and therefore can
be interpreted and modified across
generations.96F[97]
Website submissions
- 2.95 A
number of submitters to the website commented on whether our laws should do more
to acknowledge tikanga and what approach or
approaches were preferred.
- 2.96 Some
supported cultural sensitivity to tikanga and cited compliance with obligations
under te Tiriti. Some thought tikanga represented
important concepts that should
be available to all New Zealanders. Several thought that tikanga could be
effectively recognised through
a will, and this was the preferable approach.
Others did not favour “two sets of laws”, raising concerns about
tikanga
being too vague. Some were concerned about there being too much room for
disputes.
- 2.97 Raaniera Te
Whata supported his preference for our laws doing more to acknowledge tikanga by
explaining that:
- ... Regarding
the systems of law that govern succession and dispute resolution it is
fundamental that relationship property division
and taonga succession recognise
te māramatanga o ngā tikanga-a-hapū (hapū derived
philosophies of law), and whanaungatanga
(kinship relationships grounded in
responsibility — the bonds of mutual caretaking and mutual guardianship)
in considering
what is equitable in any given scenario. Tikanga are concerned
with the maintenance of balance within the bonds of relationships.
Tikanga are
mediated through kanohi-ki-te-kanohi negotiation, compromise, and agreement
between whānau and hapū. With hapū
society traditionally being a
pure pantocracy it is the collective voice that determine[s] matters [relating]
to whenua and taonga
tuku iho and thus no individual exercises power over
collective cultural assets or makes executive decisions, unless the mana to
do
so originates with and [is] conferred by the hapū
collective.
- 2.98 Only a few
website submitters expressed a direct preference for one or more approaches.
Half favoured applying tikanga to the
succession of taonga and half favoured the
approach of creating better state law that recognises tikanga Māori. In
some cases,
these submitters favoured both Option Two and Option Three. Few
submitters favoured Option One.
- 2.99 One
submitter suggested that if Māori are to choose whether current law and the
courts or tikanga is to apply in Māori
succession matters, there should be
consultation/kōrero with all hapū through a referendum or direct
engagement with hapū
and the roughly 770 marae across the country. They
thought it likely that Māori would demand a more legitimate post-colonial,
Tiriti-based, pluralistic legal order that facilitated Māori to refer their
disputes to mediation or arbitration in accordance
with tikanga.
- 2.100 Some
submitters who agreed that taonga should be governed by tikanga added that this
should be the case if this was important
to the deceased or if they had
expressed their wishes in a will. Te Whata noted how important it is for the
whakapapa of the taonga
to be maintained and that this is because the
relationships/connections between taonga, whakapapa and tūpuna are not to
be understood
simply as property but instead as a treasure encompassing multiple
concurrent networks of social connections between tangata, taonga
and ideas.
Those website submitters that commented on succession to taonga are also
considered in the discussion of succession to
taonga in Chapter 3.
- 2.101 One
submitter who favoured Option Three said they liked the third approach because
it has both state law and tikanga. They said
common sense will prevail, and te
ao Māori is at essence common sense. Other submissions included that state
law should recognise
and include tikanga and that there should be one law for
all. One submitter suggested that, to be a successful bicultural (and thus
a
more successful multicultural) country, a single legal system that recognises
and regards te ao Māori tikanga as law where
necessary is required. Concern
was also expressed, including that we have a multitude of non-Māori
cultures and beliefs/differences
that come with that. One submitter thought that
this option is likely to fall short of properly acknowledging tikanga.
CRITERIA FOR GOOD SUCCESSION LAW
- 2.102 In
the Issues Paper, we set out our criteria for good succession law in Aotearoa
New Zealand. We said that those criteria are:
(a) meeting general objectives of:
(i) consistency with the Treaty;
(ii) reflecting values and attitudes of contemporary Aotearoa New Zealand;
(iii) aligning with fundamental values and principles of a democratic society
and Aotearoa New Zealand’s international obligations;
and
(iv) making law that is clear and accessible;
(b) sustaining property rights and expectations;
(c) promoting positive outcomes for families and whānau; and
(d) promoting efficient estate administration and dispute
resolution.
- 2.103 In the
Issues Paper, we asked for feedback on these criteria.
- 2.104 We did not
ask directly about criteria for good succession law on the website. Nonetheless,
the tension between testamentary
freedom and obligations to family and
whānau, and concern about the need for accessible, simple law to minimise
disputes. were
strong themes in website submissions generally.
RESULTS OF CONSULTATION
- 2.105 Several
submitters to the Issues Paper addressed the criteria for good succession law.
There was broad agreement about the criteria
and the need to balance them but
there were differing views about how the balance should be reached and whether
there were other
relevant factors.
- 2.106 Public
Trust, Chapman Tripp, TGT Legal, Morris Legal and MinterEllisonRuddWatts agreed
with the criteria. Morris Legal submitted
that the objective of promoting
positive outcomes for families and whānau should be one of the purposes of
the new Act. Morris
Legal said that it is important that there is a balanced
approach in the new Act to ensure the legislation reflects the diverse make-up
of modern Aotearoa New Zealand, allows the courts to consider the needs of
individuals in their particular families and sets clear
parameters around the
eligibility to bring claims, reflecting New Zealanders’ general desire for
testamentary freedom.
- 2.107 While
Perpetual Guardian agreed generally with the criteria identified, it thought
that there was too much emphasis on testamentary
freedom. It submitted that,
while New Zealanders might be in favour of testamentary freedom as a concept, it
would be a different
story if they were left out of their parent’s estate.
Perpetual Guardian was also concerned about wider societal implications.
It
submitted that family are a subset of those who are seen by the law (not just
succession law) as being those obliged to persons,
in keeping with the reference
in the Social Security Act 2018, to “use your resources or the resources
of those obliged to
you”.
- 2.108 ADLS also
broadly agreed with the criteria but disagreed that the statutes currently in
force regarding succession are focused
on attitudes and values no longer held.
ADLS submitted that it is in the public good that members of a family are
equipped by their
ancestors to make the best out of life.
- 2.109 MinterEllisonRuddWatts
said that there is good balance in the criteria, particularly in giving weight
to the will-maker’s
testamentary freedom as they are usually the best
person to judge who is family and what duties are owed to them when distributing
the estate. MinterEllisonRuddWatts submitted that retaining testamentary freedom
is preferable to a code that sets out entitlements
to a “clinical”
named class of persons to benefit that bear no relation to how that person
treated the deceased or had
previous entitlements during their lifetime.
MinterEllisonRuddWatts agree that such freedom must be balanced by rights to
address
clear inequities (such as relationship property entitlements, where a
person had been depending on the will-maker’s care and
welfare and to
address tikanga rights and assets).
- 2.110 NZLS
submitted that good succession law should start with the principle of
testamentary freedom, against which potentially competing
principles must be
carefully weighed. NZLS submitted that context is important and agreed that this
means concepts of succession
may differ for Māori and non-Māori. NZLS
said that good succession law requires balancing and, where appropriate,
integrating
a Māori perspective and consideration of tikanga within the
general law. NZLS agreed that there has been profound social change
since
existing succession law was passed more than 50 years ago. NZLS submitted that
relevant values to be recognised include:
(a) testamentary freedom;
(b) a recognition of family and whānau relationships in all their evolved
forms;
(c) the rights of minors and other dependants to be protected and provisioned by
those who have responsibility for them; and
(d) a framework that fairly balances individual rights with the public good,
that is clear and able to be enforced and that provides
predictability,
certainty and a mechanism to resolve conflict.
- 2.111 NZLS said
that the following values or expectations are commonly expressed values or
expectations across many cultural groups:
(a) An expectation that, on death, a parent may have some obligation to provide
for their children (including adult children) especially
where there is a
need.
(b) An expectation on the part of a parent of a child that property they had
left by succession to the other parent of that child
(the fruits of their
relationship with that person) would benefit the child on the death of the
survivor and a corresponding expectation
on the part of the child.
(c) An expectation on the part of grandparents that provision to their children
will flow through to their grandchildren.
(d) An expectation (particularly in some cultures) that children have an
obligation to support parents or other family members.
- 2.112 NZLS said
there were other factors that might give rise to additional criteria and
mentioned research about:
(a) climate change and economic conditions such as the intergenerational wealth
gap;
(b) changes in cognitive function with age, which fall short of testamentary
incapacity but could affect will-making;
(c) elder abuse in the context of will-making; and
(d) how succession law might promote positive outcomes across the many cultural
groups in Aotearoa New Zealand or how it might be
disadvantageous to
them.
- 2.113 Jan
McCartney QC submitted that criteria were set before the key issue has been
identified, namely the appropriate restrictions
on testamentary freedom. She
submitted that the question to ask is what New Zealanders’ fundamental
values are around the moral
responsibility of a will-maker to partners, parents
and children. McCartney submitted that proper restrictions on will-makers’
freedom should include providing for financial security, psychological
wellbeing, promoting intergenerational wealth distribution,
promoting economic
wellbeing, costs of sustaining climate change effects, costs of superannuation
for an ageing population, housing
costs and, overall, promoting healthy
families.
- 2.114 Trish
Ieong submitted that promoting charitable bequests and lessening rather than
exacerbating wealth inequality should also
be criteria by which succession law
reforms should be assessed. She suggested that the criterion relating to
positive outcomes for
families and whānau should be extended to also
include “and wider society”. Ieong submitted that wealth inequality
is a growing issue. Laws that favour retaining wealth within families (that are
likely to be wealthy themselves) rather than dispersing
wealth among a wider
population are archaic and undesirable from a public policy perspective.
- 2.115 Ieong also
observed that existing succession laws were designed at a time when it was
entirely natural for people to leave their
wealth (that, for most, would be very
modest) to family, and many people did not have enough of a surplus after
providing for their
family to make charitable bequests. Ieong said that
charitable bequests are growing in popularity and referred to Giving New
Zealand’s
2014 Survey, which found that individual bequests increased by
29 per cent between 2011 and
2014.97F[98] Ieong submitted that
charitable bequests are particularly common among high-net-worth individuals and
succession laws should not
make it any harder for high-net-worth individuals to
give away their wealth to charities than it is to give wealth to their own
family.
- 2.116 Ngā
Rangahautira did not directly address the criteria for good succession law but
did comment that, although Māori
place high value on testamentary freedom
as it is intensely tied to mana and whanaungatanga, this must be balanced
against tikanga
obligations from whakapapa and whānau. THRMOA similarly
said that practical modern-day circumstances mean that most Māori
would
respect testamentary freedom except in relation to taonga and land.
THE NEED FOR A SINGLE STATUTE
- 2.117 In
the Issues Paper, we observed that the law providing for claims against an
estate is found across several statutes, the common
law and equity. We expressed
our preliminary view that there should be a single comprehensive statutory
regime that governs claims
against the estate (the new Act) as the principal
source of law. We said that the new Act would enable parties to refer to a
single
source to understand the law and that the new Act should be clear and
readable, consistent with modern drafting standards.
Results of consultation
- 2.118 We
received several submissions about the desirability of a single statute to
govern claims against estates. Public Trust, Perpetual
Guardian, NZLS, ADLS,
Professor Bill Atkin, Chapman Tripp, MinterEllisonRuddWatts, Morris Legal,
Succeed Legal and Bill Patterson
agreed that a single statute that governs
claims against estates is desirable. TGT Legal and Jan McCartney QC supported a
single
statute except in relation to having a single statutory cause of action
with respect to contribution claims. Chapman Tripp thought
appropriate
carve-outs for those who choose to rely on tikanga and exclusions for items that
have cultural relevance and value are
required.
- 2.119 NZLS said
that multiple sources of law undermine and reduce the ability of the public to
collect information and understand
their legal rights. NZLS thought that the
Administration Act should be included in such a consolidated statute. Atkin
submitted that
a new statute should be a genuine code covering all aspects of
inheritance, including the Wills Act 2007, the Succession (Homicide)
Act 2007
and the Administration Act (after it has been reformed). Public Trust,
MinterEllisonRuddWatts, Morris Legal and TGT Legal
supported the intestacy
provisions being included in the new Act. Conversely, ADLS, Patterson, Chapman
Tripp, and Michael Reason
and Azania Watene in their joint submission, favoured
the provisions remaining within the Administration Act.
- 2.120 Morris
Legal noted that the whole of the Administration Act needs review and
modernisation, and by including the intestacy provisions
within the new Act, any
future changes made to the Administration Act will not impact on the new
provisions. NZLS considered that
the whole of the Administration Act should be
reviewed and modernised and sit within the new Act.
- 2.121 Several
submitters commented that having a new Act would promote accessible law that was
easier to understand.
CONCLUSIONS
RECOMMENDATIONS
R1
A new statute called the Inheritance (Claims Against Estates) Act (the new
Act) should be enacted as the principal source of law applying
to entitlements
and claims against an estate in place of Part 8 of the Property (Relationships)
Act 1976, the Family Protection Act
1955 and the Law Reform (Testamentary
Promises) Act 1949, which should be repealed.
R2
R3
R4
The intestacy regime should remain in the Administration Act 1969 at present,
but Part 3 of that Act should be repealed and new intestacy
provisions enacted
that conform to modern drafting standards and recommendations R30-R51 below.
The Government should consider drafting the new Act in contemplation that the
matters currently covered in the Administration Act
1969, the Wills Act 2007,
the Simultaneous Deaths Act 1958 and the Succession (Homicide) Act 2007 will be
incorporated into the new
Act in the future.
The new Act should:
- reflect
the Crown’s obligations under te Tiriti o Waitangi to exercise
kāwanatanga in a responsible manner, including facilitating
the exercise of
tino rangatiratanga by Māori, in the context of succession;
- be
simple, clear and accessible law that meets the reasonable expectations of New
Zealanders;
- reflect
the New Zealand Bill of Rights Act 1990 and Aotearoa New Zealand’s
commitments under international instruments;
- appropriately
balance sustaining mana and property rights (including testamentary freedom)
with obligations to family and whānau,
in order to promote whanaungatanga
and other positive outcomes for families, whānau and wider society;
and
- promote
efficient estate administration and dispute resolution.
Te Tiriti o Waitangi
- 2.122 We
conclude that te Tiriti, the Māori text, should be regarded as the primary
source of the commitments made when Māori
and the Crown entered into the
Treaty in 1840. This reflects the context in which the Treaty was debated and
signed and is consistent
with the doctrine of contra proferentum.
- 2.123 We
acknowledge the extensive discussion and development of the principles of the
Treaty in matters dealt with by the Tribunal
and the courts, including in
circumstances where statutes require reference to the principles. This has led
to some insightful and
sophisticated consideration of important questions, and
we appreciate that statutory references to the Treaty mean that this is likely
to continue. We have, however, concluded that (other than where currently
required by statute) the appropriate foundation for understanding
the rights and
obligations of Māori and the Crown in 21st century Aotearoa New Zealand is
the text of te Tiriti. In our view,
this is a desirable approach to adopt for
the future, including in new legislation.
- 2.124 This
contemplates the exercise of tino rangatiratanga by Māori on a daily basis,
independently of state law, together with
the exercise of kāwanatanga by
the Crown. In the context of this review, we focus on how kāwanatanga might
be exercised
in a responsible manner in relation to succession, including how
the exercise of tino rangatiratanga might be facilitated. In adopting
this
approach, we also accept that, on some matters, Treaty principles may promote
the exploration of what responsible kāwanatanga
looks like in specific
circumstances.
What responsible kāwanatanga means for succession
law
- 2.125 We
conclude that responsible kāwanatanga requires us to approach our
recommendations for weaving new succession law from
three separate starting
points. We suggest that in doing so, we are acknowledging the importance of
substantive equality, as contemplated
in article 3 of te
Tiriti.98F[99]
- 2.126 First,
state succession law should facilitate tino rangatiratanga through recognising
tikanga Māori where that is necessary,
in light of the commitment in te
Tiriti, to enable Māori to live according to tikanga. In the context of
succession, this promotes
the application of tikanga by and within whānau.
An example of this is in our recommendations is to specify whāngai as
eligible claimants under the new intestacy rules and in relation to family
provision awards.99F[100] A
further example is that when we recommend the availability of family provision
awards to surviving partners, we expressly include
the tikanga of the relevant
whānau as a factor the court should consider in determining the amount of
an award.100F[101]
- 2.127 Second,
state succession law should weave new law that reflects tikanga Māori and
other values shared by New Zealanders
(a “third law”). We think this
is a deeply important approach to law-making in Aotearoa New Zealand to support
a nation
that is grounded in the commitments of te Tiriti, to the benefit of all
New Zealanders. As we discussed in the Issues Paper, this
approach requires
tikanga Māori to be considered in both defining and responding to a policy
“problem” rather than
just incorporating tikanga into a pre-existing
model of state law An example of this is when we rely on the tikanga relating to
whanaungatanga,
manaakitanga and aroha that require that the needs of tamariki
are met to justify a presumption in favour of granting a temporary
occupation
order to the principal caregiver of a child of the deceased for the benefit of
that child. 101F[102] A further
example is the reliance on mana to support the availability of contracting
out.102F[103]
- 2.128 We have
taken these approaches as far as possible in our recommendations for reform. We
accept that, in some areas, they have
been difficult to implement given the
pervasive nature of aspects of state law. This has particularly been the case in
relation to
the matters we discussed in Part 3 of the Issues Paper, which
covered making and resolving claims against an estate. We recognised
the
importance of considering tikanga in relation to these matters and sought
feedback on any other areas where state law ought to
recognise and respond to
tikanga and any kawa necessary to enliven that tikanga. In Chapters 8–16
of this Report, we have been
mindful generally of tikanga concepts as discussed
above, the potential incompatibility of tikanga and default rules and the
importance
of kōrero in resolving disputes. However, we have only discussed
specific tikanga where they are meaningful in the context.
We do not wish to
misrepresent our understanding or reliance on tikanga in relation to procedural
matters that are fundamentally
sourced from state law.
- 2.129 Third,
kāwanatanga should recognise its own limits by not applying state law to
taonga. We conclude that the responsible
exercise of kāwanatanga requires
that tikanga Māori be able to continue to govern succession to taonga, and
the appropriate
role of state law in relation to taonga should be limited to
facilitating the resolution of disputes in accordance with tikanga Māori.
In our view, this is appropriate because taonga sit firmly within te ao
Māori. This is responsible kāwanatanga facilitating
the exercise of
tino rangatiratanga. We acknowledge the views of some Māori who contemplate
sharing the concept of taonga more
broadly. There may be a future time in
Aotearoa New Zealand when the development of the “third law” is such
that this
may occur.
- 2.130 We are not
making any further recommendations in relation to tikanga determining succession
matters for Māori without state
law involvement. As we said in the Issues
Paper, this approach raises profound questions about the relationship between
tikanga as
the first law of Aotearoa New Zealand and state law, and these
questions go beyond this succession project. However, it is important
that these
matters are considered further, and we expect that contributions will continue
to be made by many, including the Commission,
academics and those progressing
the discussion of constitutional transformation as discussed in the Matike
Mai Report.103F[104]
Particular matters may nonetheless be able to be advanced while this broad work
is progressed. In Chapter 16, for example, we discuss
ōhākī,
suggesting that, given the significance of ōhākī to Māori in
the sphere of succession,
the Government considers recognising
ōhākī as an expression of testamentary wishes, enforceable in
state law.
A new Inheritance (Claims Against Estates) Act
- 2.131 We
recommend that a new statute should be enacted as the principal source of law
relating to entitlements to and claims against
an estate. We also recommend that
Part 3 of the Administration Act be repealed and replaced to reflect our
recommendations in Chapter
7.
- 2.132 The new
Act should reflect our recommendations in this Report and be drafted in simple
and clear terms in accordance with modern
legislative drafting standards. This
will require the repeal of each of Part 8 of the PRA, the FPA and the TPA (and
other more incidental
changes) as discussed in subsequent chapters of this
Report.
- 2.133 The new
Act should be titled the Inheritance (Claims Against Estates) Act because this
name is simple, clear and reflects the
key subject matter of the statute. We
suggest the word “inheritance” is used in the name of the new Act as
we think it
is likely more broadly understood than the word
“succession”.
- 2.134 We
acknowledge that, given our recommendations about the TPA in Chapter 6, common
law and equity claims relating to contributions
to a deceased will remain
outside the proposed new Act. We also note our recommendations in Chapter 3
about succession to taonga,
discussed above.
- 2.135 In the
Issues Paper, we asked whether a reformed intestacy regime ought to sit within
the new Act or remain in the Administration
Act. Our consultation did not
provide a clear answer to this question. For that reason and because there is a
case to be made that
the other matters of administration dealt with in the
Administration Act are usefully kept together with the intestacy regime, we
have
not recommended that the intestacy regime be included in the new Act.
- 2.136 However,
as preferred by other commentators and some submitters (including NZLS), we
think there is merit in the Government
considering the consolidation of multiple
statutes relevant to the administration and succession of both testate and
intestate estates,
like the approach taken in several Australian states. In our
view, this would include at a minimum the new Act, the Wills Act, the
Administration Act, the Succession (Homicide) Act and the Simultaneous Deaths
Act 1958.104F[105] This would
result in one statute in which the key laws relating to inheritance could be
found, promoting clear and accessible
law.105F[106] At this point, the
name of the Act could be amended to be the Inheritance Act.
Simple clear law that meets New Zealanders’ reasonable
expectations
- 2.137 Our
recommendations in this Report are intended to achieve simple, clear law
relating to entitlements to and claims against
an estate that meets the
reasonable expectations of New Zealanders. The current law is old, out of date
and inaccessible. Our recommendations
are informed by what we know about
Aotearoa New Zealand’s changing social context and by the fundamental
values and principles
of Aotearoa New Zealand’s democratic society and its
international
obligations.106F[107] Our
recommendations have also been informed by what we have learned about New
Zealanders’ attitudes, values and expectations
of such law through
consultation and the results of the Succession Survey.
- 2.138 Several
submitters raised a concern that the Succession Survey did not capture a full
picture of contemporary values and attitudes.
There were practical limitations
on the breadth of the survey which meant it was impossible to address all the
issues that arise.
We nonetheless think the results of the Succession Survey are
valuable in relation to the matters it covered.
Reflecting fundamental human rights and international
obligations
- 2.139 Good
law recognises and respects fundamental human rights, including the rights
affirmed in the New Zealand Bill of Rights Act
1990 and international
instruments. We have given particular attention to the United Nations Convention
on the Rights of the Child,
the United Nations Declaration on the Rights of
Indigenous Peoples and the United Nations Convention on the Rights of Persons
with
Disabilities. Our recommendations for reform take these matters into
account.
Balancing mana, property rights, obligations to family and
whānau and the interests of wider society
- 2.140 The
value-laden nature of questions around who should get a person’s property
when they die were clearly apparent throughout
consultation. Strongly held views
were expressed in favour of individual property rights and in favour of
obligations to family and
whānau. The most challenging aspect of making
good succession law arises from the inevitable tension between sustaining
property
rights and expectations (including testamentary freedom) on the one
hand and recognising obligations to family and whānau on
the other and the
need to balance both. In addition to these matters, we have concluded that
another relevant criterion for good
succession law is taking account of the
interests of wider society.
- 2.141 We
explained in the Issues Paper that an owner of property generally has rights to
deal with property in whatever way they wish.
A question arises as to the extent
to which this right exists when the owner dies. The traditional approach in
common law jurisdictions
is to recognise property owners’ testamentary
freedom (although this is not
absolute).107F[108]
- 2.142 As
explained earlier, state law in Aotearoa New Zealand maintains testamentary
freedom. Although the right to testamentary freedom
is qualified by the various
claims an individual can bring to seek further provision from the estate, a
properly executed will remains
effective until successfully challenged.
- 2.143 There are
further reasons to support a property owner’s testamentary freedom:
(a) Testamentary freedom respects the mana of the deceased.
(b) The will-maker is usually the best person to judge who is family and what
duties are owed to them when distributing their estate.
(c) There is symbolic value in beneficiaries receiving gifts that the will-maker
has intentionally chosen to make rather than through
the operation of statute or
a court order.
(d) The community may collectively benefit where will-makers have freedom to
extend their testamentary dispositions to charities
and other community
organisations.
(e) Too much interference with testamentary freedom may cause avoidance
behaviour for those who wish to dispose of their property
in a different manner
to that required by the law.
- 2.144 In
addition to a will-maker’s rights, there are property rights and
expectations of others to be considered. A beneficiary
of a will has an interest
in seeing the deceased’s testamentary wishes that benefit them upheld.
Parties that acquire rights
to property held by the deceased during the
deceased’s life have an interest in those rights enduring against the
estate. A
surviving partner’s relationship property rights are an
important example.
- 2.145 Many
submitters acknowledged that, in modern Aotearoa New Zealand, property rights in
state law are important for Māori.
However, tikanga also requires
consideration of the nature of particular property, addressing whether certain
items are not properly
considered the property of an individual but that of a
collective.
- 2.146 For these
reasons, in a testamentary context, we have confirmed our preliminary view that
any restriction on the property rights
individuals enjoy during their life must
be supported by clear policy reasons. We have set out in the following chapters
our recommendations
in relation to entitlements to and claims against estates,
reflecting the policy reasons for our views on appropriate
restrictions.
Efficient estate administration and dispute
resolution
- 2.147 The
Issues Paper identified that good succession law must also promote efficient
estate administration and dispute resolution.
When deciding on the terms of
their will, will-makers should be able to understand what obligations they will
owe on death. There
should be clear rules for distributing an intestate estate.
For those who wish to claim against an estate or defend a claim, the
law should
enable them to understand their rights and to determine the strength of such a
claim. For personal representatives charged
with administering and distributing
an estate, the law should be clear on their duties and what claims can be
properly admitted.
- 2.148 We also
said that there should be clear processes for resolving disputes in and out of
court. Parties should be able to understand
what processes may be followed to
resolve disputes. They should understand their legal and procedural obligations
to facilitate the
efficient resolution of disputes, such as disclosure of
information and the need to organise the representation of those who the
law
deems to lack capacity. Parties should be able to settle disputes without the
need for defended court proceedings, and the law
can facilitate the settlement
of disputes through agreement while ensuring parties are aware of their rights
and unjust outcomes
are avoided.
- 2.149 The
emphasis in tikanga on the contribution that proper process can make to dispute
resolution is significant. The substance
of a dispute and the process for
resolving it are inextricably linked. State law can facilitate tino
rangatiratanga through its approach
to dispute resolution.
- 2.150 Our
detailed recommendations on all these matters are set out in the remaining
chapters of this Report.
Reference to tikanga Māori in our
recommendations
- 2.151 A
common theme in many of our recommendations is to refer to tikanga as a key
element of rights and obligations as well as dispute
resolution processes. This
has highlighted the question of whose tikanga we are referring to.
- 2.152 Several
submitters commented on the variation in practice of tikanga. Chapman Tripp said
it is important to note that understandings
of the way in which tikanga
principles manifest in practice will differ between rohe, iwi and hapū, and
so the proposed reforms
should provide for deference to the tikanga-based
practice of particular whānau, hapū and iwi.
- 2.153 We have
concluded that, given the nature of succession matters, it is the tikanga of
whānau that will be most important.
We have therefore referred to tikanga
of the relevant whānau in the following chapters. We contemplate that the
tikanga of more
than one whānau may be involved in some cases. The one
exception to this is the tikanga relevant to succession to taonga. As
we discuss
in Chapter 3, we have concluded that the appropriate tikanga in this context
should be articulated more broadly as the
tikanga of the relevant whānau or
hapū.
Part Two
ENTITLEMENTS TO AND CLAIMS AGAINST ESTATES
![2021_14507.png](2021_14507.png)
CHAPTER 3
Succession and taonga
IN THIS
CHAPTER, WE CONSIDER:
- succession to
taonga according to tikanga Māori; and
- the definition
of taonga in a succession law context.
INTRODUCTION
- 3.1 This
chapter considers whether state succession law should expressly provide that
those laws would not apply to taonga and that
tikanga Māori should instead
apply.
- 3.2 Whenua
Māori is recognised as a taonga tuku iho in the preamble of Te Ture Whenua
Maori Act 1993 (TTWMA).108F[109]
In the Issues Paper, we discussed TTWMA and the recent changes made to it. The
terms of reference for this review specifically exclude
TTWMA.109F[110] Our
recommendations in this chapter do not apply to whenua
Māori.110F[111]
- 3.3 In the
Issues Paper, we also discussed the land that was removed from Māori under
the 1967 amendments to the Maori Affairs
Act 1953 and expressed our view that
the remedy for this is best suited to separate consideration between Māori
and the Crown.
We asked whether the recent changes to TTWMA have resolved issues
relating to family homes built on whenua Māori. We received
feedback that
this is a complex issue and it is too early to comment on the impact of these
changes. We therefore do not discuss
these matters further here.
CURRENT LAW
- 3.4 As
we explain in Chapter 2, state succession law follows logically from the state
law that recognises property rights during a
person’s lifetime, such as
rights to ownership, use and exclusion of
others.111F[112] Several statutes
relevant to succession refer to property.
- 3.5 Estate is
defined in section 2 of the Administration Act 1969 as “real or personal
property of every kind, including things
in action”. Section 77 deals with
succession to real and personal estate on intestacy and prescribes that the
“estate”
must be distributed according to its
terms.112F[113]
- 3.6 A will is
defined in section 8(1) of the Wills Act 2007 as a document that:
- (a) is made by
a natural person; and
- (b) does any or
all of the following:
(i) disposes of property to which the person is entitled
when he or she dies; or
- (ii) disposes
of property to which the person’s personal representative becomes entitled
as personal representative after the
person’s death; or
- (iii) appoints
a testamentary guardian.
- 3.7 Section 8(5)
does not comprehensively define property but defines it for the purposes of the
section as including or excluding
certain rights and interests.
- 3.8 The Property
(Relationships) Act 1976 (PRA) excludes taonga from the definition of family
chattels in recognition that taonga
are not like other property referred to in
the definition.113F[114] To date,
case law in relation to claims asserting that items are taonga and should
therefore not be understood as family chattels
reveals that all claimants have
been non-Māori.
- 3.9 State law
uses the concept of a trust to permit the holding of property on behalf of
others. In Biddle v Pooley, te Kōti Matua | High Court (the High
Court) held that the taonga, two taiaha and a tewhatewha, were held on a trust
on terms
that required the trustee to care for the taonga with respect for
tikanga.114F[115] The case is an
example of trust law being used by the courts to ensure taonga are held
appropriately.
NGā TIKANGA
- 3.10 Taonga
are knowledge and identity markers for tangata whenua. They are connected to the
past to remind the living of their obligations
to the living and future
generations.115F[116] There are
various descriptions of taonga according to tikanga Māori. It has been
defined broadly in Te Mātāpunenga
as “[a] socially or culturally
valuable object, resource, technique, phenomenon or
idea.”116F[117] Another
broad definition is provided in He Pātaka
Kupu:117F[118]
- He mea kei te
tangata e mau ana, nāna ake, nōna ake rānei.
- 3.11 Some
descriptions of taonga have emphasised the connection between the object and
cultural identity. Professor Tā Hirini
Moko Mead has described taonga as a
“highly prized object” and taonga tuku iho as “gift of the
ancestors, precious
heritage”.118F[119]
Professor Paul Tapsell has said a taonga is “any item, object or thing
which represents a Māori kin group’s (whanau,
hapu, iwi) ancestral
identity with their particular land and
resources”.119F[120]
Professor Jacinta Ruru suggested a taonga may be a “valued possession held
in accordance with tikanga Maori and highly prized
by the whanau, hapu or
iwi”.120F[121] Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal has
suggested a “taonga work”
is:121F[122]
- ... a work,
whether or not it has been fixed, that is in its entirety an expression of
mātauranga Māori; it will relate
to or invoke ancestral connections,
and contain or reflect traditional narratives or stories. A taonga work will
possess mauri and
have living kaitiaki in accordance with tikanga
Māori.
- 3.12 Taonga are
more than their tangible forms, having associated intangible attributes such as
mana, tapu, kōrero, mauri (life
force, essential quality of life) and utu.
The extent to which these attributes are manifested in a taonga depends on a
range of
factors. For example, a taonga that was originally created or used by
tūpuna (ancestors), such as a taiaha, which has been handed
down through
generations, will derive mana, tapu, kōrero and mauri from the mana of the
tūpuna who wielded it and the significance
of the incidents in which the
taiaha was used. These attributes affect the rights and obligations in tikanga
attached to it as well
as the manner in which it is expected to be treated or
dealt with. Where a taonga strongly reflects these attributes and becomes
tapu
through ceremonial use or otherwise, it may have its own mauri, which must be
respected. Failure to do so may result in utu,
or supernatural or divine
consequences. Where a taonga has fewer of these intangible qualities,
individuals may exert more influence
over the taonga.
- 3.13 Taonga hold
special significance to their kin collective. For taonga that are not merely
valuable possessions but have a special
tapu and mauri, the deceased is not
necessarily an owner, as understood under general property law, but rather holds
a kaitiaki role
over these items on behalf of a whānau, hapū or
iwi.122F[123] In a succession
context, a critical question is who will be appointed to not only care for the
taonga’s physical form but to
carry the knowledge associated with it and
the duties accompanying that
knowledge.123F[124]
Recommendations from the PRA review
- 3.14 In
the PRA review, we recommended that the new Relationship Property Act should
define taonga within a tikanga Māori construct,
but the definition should
exclude land.124F[125] We also
recommended that the new Relationship Property Act should ensure that taonga
cannot be classified as relationship property
in any circumstances and that a
court cannot make orders requiring a partner to relinquish taonga as
compensation to the other
partner.125F[126] We noted that,
although consultation was limited, the level of support for prioritising
kaitiakitanga over division for taonga indicated
reform was desirable. We
considered this reflected the Māori world view and how Māori treat
taonga outside of the rules
of a property sharing regime when partners separate
or when one partner dies.126F[127]
We also suggested that Māori should be consulted to inform the drafting of
any definition of
taonga.127F[128]
ISSUES
Should taonga be excluded from general succession
law?
- 3.15 The
central issue concerns how the Crown should exercise its kāwanatanga (the
right to govern) to facilitate the exercise
of tino rangatiratanga over taonga
in a succession context. A significant part of this is responding to the risk
that the concept
of taonga and the tikanga applying to it may be assimilated
into general property law concepts and dealt with under state succession
law.
This could be inconsistent with te Tiriti’s guarantee to Māori of
ensuring “te tino rangatiratanga o ... o
ratou taonga katoa”, which
includes proper recognition of tikanga.
- 3.16 We have
heard that disputes over taonga do not usually make their way into the courts.
Tikanga operates on a day-to-day basis
in Aotearoa New Zealand, and disputes
involving taonga are usually resolved within the whānau or hapū to
which they belong.
In the Issues Paper, we observed that it is possible that
creating a statutory exclusion of these items would simply recognise what
is
already happening in practice: that taonga are being succeeded to according to
tikanga outside the general law of succession.
Should taonga be defined by reference to
tikanga?
- 3.17 In
the Issues Paper, we said that, if expressly removing taonga from the general
law of succession is desirable, taonga would
need to be defined within general
succession law in order to be excluded from it. We said this could be done by
defining taonga according
to the tikanga of the relevant whānau or
hapū. Under this approach, tikanga would determine whether or not an item
was
subject to the general rules of succession. Alternatively, a more
prescriptive definition might be adopted, although we acknowledged
that there
are known risks associated with the inclusion of kupu Māori in
legislation.
Should taonga be limited to items that are connected to
Māori culture?
- 3.18 “Taonga”
is a kupu Māori that originates from a Māori perspective. Arguably,
items that in practice have
similar properties as taonga should not be
considered taonga if they have no connection to Māori culture. Another view
would
be that taonga may have a much broader definition not limited to items
that have a connection to Māori culture.
RESULTS OF CONSULTATION
- 3.19 In
the Issues Paper, we asked questions concerning the use of the term taonga, the
exclusion of taonga from general succession
law and how taonga might be defined
for such a purpose. On the consultation website we asked a broad question about
the exclusion
of taonga from the general law of succession with a fact scenario
to explain what that would look like.
Should taonga be excluded from general succession law and
instead governed by tikanga?
- 3.20 In
the Issues Paper, we asked whether taonga should be excluded from general
succession law. Most submitters agreed that taonga
should be excluded from
general succession law and governed by tikanga instead. These submitters were Te
Kāhui Ture o Aotearoa
| New Zealand Law Society (NZLS), the Family Law
Committee of the Auckland District Law Society (ADLS), Te Hunga Rōia
Māori
o Aotearoa (THRMOA), Ngā Rangahautira, Chapman Tripp, Te Kani
Williams, David Williams, Professor Jacinta Ruru and Katie Murray.
Those who did
not explicitly agree considered that the views of Māori should determine
whether taonga is specifically excluded.
- 3.21 A small
number of website submitters addressed the exclusion of taonga from general law.
They all agreed that tikanga should
determine succession to taonga.
Use of “taonga” to describe items that might be
excluded from general succession law
- 3.22 In
the Issues Paper, we asked whether taonga is an appropriate term to describe
items that might be excluded from general succession
law. Several submitters
noted that taonga is a broad term. Chapman Tripp noted that taonga can include
most things of value, whether
tangible or intangible. For example, taonga may
describe te reo Māori as well as a pounamu necklace. Chapman Tripp and
THRMOA
submitted that “taonga tuku iho” is a more appropriate term
to use as it denotes a downwards trajectory through generations
and so is more
appropriate in a succession context. Chapman Tripp also suggested the term
“manatunga”, which relates
specifically to things of value that are
intentionally passed through generations. For Chapman Tripp, “taonga tuku
iho”
and “manatunga” were preferred because they limit the
potential pool to things that are bound up in a philosophy that
makes them
culturally pertinent. The terms are imbued with a history and expectation of
intergenerational transmission, which in
Chapman Tripp’s view justifies
the removal of such items from the scope of general succession law. THRMOA
submitted that a
term that more narrowly defines the types of items intended to
be caught is required.
- 3.23 NZLS
considered that taonga is the correct kupu Māori to use and that its
definition cannot be prescriptive as its meaning
would need to be fluid and
dictated by the tikanga of the relevant whānau or hapū. Ngā
Rangahautira also agreed that
taonga was an appropriate term to use. However,
they noted that taonga is a broad term and it must be defined carefully to
exclude
certain items that appropriately devolve according to general succession
law.
- 3.24 Community
Law Centres o Aotearoa queried how taonga would be defined and whether a tikanga
process could apply to a family homestead
on general land that had been handed
down through generations to be lived in communally. They also queried whether
other cultures
would be able to follow their own cultural practices in relation
to items of cultural significance.
- 3.25 Professor
Paul Tapsell cautioned that the separation of Māori words from their
cultural context removes their indigenous
meaning. Tapsell used the word
kāinga as an example. It has developed a general meaning of house or home,
but in more customary
contexts, it holds a much wider meaning, referring to the
community’s intimate engagement with whenua and associated taonga
that
supported and nourished the community. Tapsell commented that the customary
values underpinning taonga need to be clearly articulated
and placed equally
alongside state law, consistently reflecting the sharing of sovereignty
envisaged under te Tiriti.
Should taonga be limited to items that are connected to te
ao Māori?
- 3.26 In
the Issues Paper, we asked if taonga (or another appropriate kupu Māori)
should be defined by reference to tikanga and
if so, should the tikanga be that
of the relevant whānau or hapū. We also asked if taonga should be
limited to items or
things connected to Māori culture.
- 3.27 THRMOA
considered that taonga should be limited to items that are connected to te ao
Māori and that although taonga could
extend to non-Māori items,
another term for precious items not connected to te ao Māori is required.
THRMOA also considered
that this does not mean non-Māori could not claim a
taonga as understood in accordance with tikanga Māori.
- 3.28 Ngā
Rangahautira considered that taonga should be limited to items that are
connected to Māori culture because taonga
have special ancestral and
cultural significance that could not apply to Pākehā items. They said
that applying taonga to
non-Māori items undermines the value of
kaitiakitanga. Ngā Rangahautira said taonga should be defined by reference
to tikanga
that is specific to the relevant whānau, hapū or iwi. They
said this is the best way to account for differences in tikanga
as well as to
avoid taonga becoming a word that is up to the interpretation of the judiciary
or improperly defined in statute.
- 3.29 NZLS
considered that taonga should be limited to items that are connected to
Māori culture but noted that, as there may
be divergent views within
Māoridom on this issue, wide consultation with Māori is
necessary.
- 3.30 Tapsell
considered that, if the kōrero behind a taonga is lost or becomes obscured,
it may render the taonga unprovenanced.
Although recognisably Māori, it may
no longer be seen as constrained by customary obligations. Conversely, under the
right conditions
items that are Western in manufacture can transform into
taonga, especially if they come to symbolise an ancestral relationship to
a
particular people and place.
- 3.31 Murray
noted a distinction between communal taonga and individual taonga. She noted
that different forms of kaitiakitanga apply
over each of them. Whānau,
hapū and iwi have to work out succession to community taonga, but
succession to individual taonga
is determined by the individual. She noted that
tikanga Māori sits within a Māori world view, but that does not
necessarily
mean tikanga should not be available to all. As a partner to te
Tiriti, Māori bring tikanga to the table.
- 3.32 Chapman
Tripp compared a rākau whakapapa to a car to demonstrate the difference
between a taonga tuku iho and other items
that are not connected to te ao
Māori. They said that a rākau whakapapa handed down between
generations is adorned with
indications of genealogical links to tūpuna,
which also means it is an item with associated mana and tapu. The rākau
whakapapa
would be handed down through generations to ensure the genealogical
ties of a whānau are never forgotten. A car, on the other
hand, does not
have associated mana or tapu that connects it to te ao Māori. They
recognised that there may be items not connected
to Māori culture that have
sentimental value and therefore one could argue they are at least similar to
taonga tuku iho. However,
such items could simply be described as
heirlooms.
CONCLUSIONS
RECOMMENDATION
R5
State
law should not determine the substantive question of succession to taonga. The
new Act should provide that succession to taonga
is determined by the tikanga of
the relevant whānau or hapū and that taonga should not be available to
meet any entitlement
or claim under the new Act or entitlement under the new
intestacy provisions.
“Taonga” is the preferable kupu Māori to
use to describe the items to be excluded from state succession law
- 3.33 We
prefer the use of the term “taonga” to the term “taonga tuku
iho” for two reasons. First, taonga tuku
iho is less than what Māori
were promised in te Tiriti, which guaranteed “te tino rangatiratanga o ...
o ratou taonga
katoa”. In the context of this review, we consider that
limiting “taonga katoa” to taonga tuku iho does not meet
the
guarantees in te Tiriti and falls short of the Crown’s obligation to
exercise its kāwanatanga in a responsible manner.
Second, in our view,
taonga tuku iho is too limited in principle for reasons we set out below. We
also noted in the PRA review that
taonga tuku iho may not capture taonga that
are newly
created.128F[129]
Tikanga (and not state law) should determine the substantive
question of succession to taonga
- 3.34 In
our view, state law should not determine the substantive question of succession
to taonga. The Wills Act, the Administration
Act and the new Act will all need
to address this to ensure that succession to taonga is determined by the tikanga
of the relevant
whānau or hapū. The Wills Act should be amended to
still contemplate the expression of testamentary wishes by a deceased
over
taonga but ensure that, where there is any dispute over succession to taonga,
tikanga determines the outcome. The Administration
Act will need to be amended
to exclude the distribution of taonga on intestacy. The new Act will also need
to ensure that taonga
are not available to meet a family provision or
testamentary promise claim. These recommendations do not mean that the state
legal
system cannot resolve disputes over taonga. As discussed in Chapter 2, we
think the state law system must support the expression
of tino rangatiratanga,
including in relation to taonga. This means providing support to resolve
disputes where whānau wish
to use state systems to do
so.129F[130]
- 3.35 We consider
that it is crucial to treat taonga in such a way as to respect tikanga such as
kaitiakitanga, whanaungatanga, mana,
mauri and whakapapa in their true meanings
grounded in mātauranga Māori. It flows from this conclusion that we
consider
tikanga Māori provides a framework for the succession to taonga
and for resolving disputes over taonga. In our view, this approach
is preferable
to relying on trust law to resolve a whānau dispute over taonga, as
happened in Biddle v Pooley.
- 3.36 As we noted
above, disputes involving taonga do not usually make their way into the courts,
and tikanga operates on a day-to-day
basis in Aotearoa New Zealand. In forming
our recommendations, we have considered the option of simply making no mention
of taonga.
This would arguably recognise that taonga are being managed according
to tikanga outside the general law of succession. Despite this,
we prefer an
express reference for several reasons:
(a) In our view, an express reference actively protects “te tino
rangatiratanga o ... o ratou taonga katoa” and is the
best way for the
Crown to responsibly exercise its kāwanatanga to that effect. It is better
for Parliament to provide direction
than to rely on the relative scarcity of
taonga disputes in the courts to ensure that tikanga continues to underpin the
treatment
of taonga.
(b) The cases that have come before a court in the PRA context have been brought
by non-Māori
parties.130F[131] By defining
taonga within a tikanga construct (which we discuss below), non-Māori
parties must engage with tikanga Māori
concepts in order to show that
something is a taonga, meaning the exclusion of taonga is less likely to be
sought to be applied for
reasons other than its intended purpose.
(c) Notwithstanding that, in practice, taonga may be succeeded to outside of
state law, an express exclusion provides certainty as
to the legal position of
taonga for the purposes of succession law.
(d) We acknowledge the risk that the tikanga of taonga may become fixed or
distorted by discussion in the general courts. We think
this risk is mitigated
by the following:
(i) Courts are very careful about finding tikanga as a matter of fact, and any
finding by a court can only be a “snapshot at
a certain point ... What is
recognised by a court cannot change the underlying fact of tikanga determined by
the hapū or iwi,
exercising their
rangatiratanga.”131F[132]
(ii) We expect that few cases involving disputes over taonga will make their way
to the courts, consistent with current practice.
(e) Under our recommendations in Chapter 11, te Kooti Whenua Māori |
Māori Land Court will have jurisdiction in relation
to succession to
taonga. If such jurisdiction is extended, the Part 3A mediation process in TTWMA
will be available to support resolution
of disputes over taonga within the
whānau or hapū. Courts will also be able to appoint pūkenga
(experts) to provide
evidence on tikanga, where
necessary.132F[133]
- 3.37 Several
submitters noted that testamentary freedom is important for
Māori.133F[134] However, most
of these submitters said that testamentary freedom must be balanced with
whanaungatanga and whakapapa obligations.
THRMOA said that, in practical
modern-day circumstances, most Māori would respect testamentary freedom
with the exception of
two categories where testamentary freedom was burdened by
whānau and whakapapa considerations, namely taonga and land.
MinterEllisonRuddWatts
said the application of tikanga to testamentary freedom
will typically constitute a balancing exercise, weighing up concepts like
mana,
whānau, utu and kaitiakitanga and how these apply to the specific
circumstances. They noted the nature of the item in
question and its
significance to the community are likely to be important considerations. These
views suggest to us that less weight
is placed on testamentary freedom over
objects with significant obligations sourced from whanaungatanga and whakapapa,
such as taonga.
- 3.38 It is
important to note that our proposed approach does not prevent the
deceased’s wishes as expressed in a will from having
any effect over
taonga they may hold. The deceased’s wishes may still be given effect in
the following ways:
(a) The whānau or hapū may choose to respect a provision in a will and
give the provision effect as an expression of the
deceased’s mana.
(b) A provision in a will may serve as an indication of the deceased’s
wishes concerning the taonga and inform the kōrero
surrounding the question
of succession to the taonga.
- 3.39 The tension
between testamentary freedom and obligations sourced in whanaungatanga and
whakapapa is absent where the deceased
has expressed no wishes regarding any
taonga. Their wishes cannot be given effect to by the whānau or considered
in any kōrero
following death. We do not think that taonga should be
succeeded to according to the intestacy rules when tikanga so strongly
necessitates
whānau or hapū kōrero processes regarding
taonga.
- 3.40 Communal
responsibility and decision-making over taonga may be contrasted with the
purpose of both a will and the intestacy regime.
A will
is:134F[135]
- ... the
declaration in a prescribed manner of the intention of the person making it with
regard to matters that he or she wishes
to take effect after his or her
death.
- 3.41 The
intestacy regime is a default set of rules that operate in the absence of a
will, designed to reflect what most people would
have done if they had made a
will.135F[136]
- 3.42 Communal
responsibility and decision-making may not be reflected in a will or the
intestacy rules. Although we know testamentary
freedom is valued in te ao
Māori, in our view, decisions concerning taonga require a contextual
approach. The deceased’s
wishes may be an important contextual factor,
particularly if the deceased was a person of great mana, but not necessarily
determinative.
- 3.43 We consider
that taonga exist on a spectrum. At one end, taonga may include items of value
over which it is accepted that the
owner’s mana permits them influence as
to what should happen to the taonga, and the collective will accept that
outcome. At
the other end, taonga may have mauri and tapu and have significant
meaning to the wider whānau, hapū or iwi. The determination
of where a
taonga sits on this spectrum is, in our view, one that must be made according to
tikanga Māori. By recommending a
broad exclusion of taonga, we are not
recommending that a person would lose influence over personal taonga but rather
affirming that
those rights are ones sourced from tikanga Māori and not
state law.
Taonga should be limited to items connected to te ao
Māori
RECOMMENDATION
R6
In the context of state succession law, taonga should be defined within a
tikanga Māori construct, but excluding all land. Taonga
should be limited
to items that are connected to te ao Māori.
-
- 3.44 In the
Issues Paper, we outlined two views arising from the literature and case law
about whether taonga should be limited to
things that hold cultural significance
only for Māori. On one view, taonga is a kupu Māori that originates
from an ao Māori
perspective and should be limited to things that have some
Māori association or
content.136F[137] On the other
view, taonga describes things or the relationship between people and those
things that can apply regardless of cultural
context.137F[138]
- 3.45 In our
view, what constitutes a taonga is something that should be determined by the
tikanga of the relevant whānau or hapū.
Ultimately, this is a factual
inquiry that must be undertaken considering both the relevant tikanga and the
circumstances of the
case.
- 3.46 On this
view, not all things that on their face appear to be derived from or otherwise
connected to Māori culture will be
a taonga. Conversely, there may be some
things that appear to have no connection to Māori culture that may be
taonga. Our view
is less focused on the thing itself (although that is not
irrelevant) and more focused on the surrounding circumstances that show
it is a
taonga according to tikanga Māori. Thus, context is again crucial. Some of
the factors that might be relevant contextually
include:
(a) whether the taonga has an identifiable creator and has been handed down
through generations of whakapapa;
(b) whether the taonga has been bestowed formally to a recipient, and mana given
by the whānau to the taonga ceremonially or
otherwise; and
(c) whether there is a common expectation by whānau about how the item will
be treated as distinct from personal possessions.
- 3.47 Submitters
generally favoured a definition of taonga that is limited to items that have a
connection to te ao Māori. We
agree with this in principle. However, there
are some conceptual difficulties in defining exactly what would qualify an item
as being
connected to te ao Māori. We do not anticipate these difficulties
will cause many issues in practice, but we give some examples
to demonstrate
them. Items of a similar nature to the rākau whakapapa that Chapman Tripp
mentioned in their submission, for
example, have a clear connection to te ao
Māori. Whakapapa information is carved into the taonga itself and is also
present
in the kōrero surrounding the taonga as it is passed through
generations of whānau Māori. However, the way in which
an item is
connected to te ao Māori may not always be obvious. For example, a war
medal received by a tupuna Māori may
perform the same functions, have
similar kōrero surrounding it and have kaitiakitanga obligations attached
to it, but without
the requisite knowledge there would be no way to connect it
to te ao Māori. Conversely, an intricately carved pounamu depicting
atua
(revered ancestors or deities) may have been purchased from a gift shop and
subsequently sat in a bedside drawer for a decade.
It performs no whakapapa
functions, has no associated kōrero with it and has no significance to
anyone besides the person who
received it as a gift. Ultimately, whether an item
has a sufficient connection to Māori culture to be considered a taonga will
have to be determined according to the relevant tikanga in the facts of any
individual case.
- 3.48 For
some submitters, items that had no connection to te ao Māori could still be
considered a taonga if the core elements
of a taonga existed, albeit in an ao
Pākehā context. An example may help demonstrate this view. Sarah is 64
and a Pākehā.
She looks after an academic gown handed down to her by
her grandfather, now deceased, who received it from his father as a graduation
gift. Sarah’s grandfather gifted the gown to Sarah on his 80th birthday in
front of their family and explained where the gown
had come from and who had
worn it on special occasions. The gown is usually worn by members of the family
at their graduation ceremonies
and is sometimes worn on other formal occasions.
The family all know the history of the gown and ensure that those who wear it
know
where it has come from. Sarah considers herself the caretaker of the gown
on behalf of the family. On this view, it is arguable that
the academic gown
should be considered a taonga.
- 3.49 We consider
these views constitute a valid perspective on taonga. However, although the gown
in Sarah’s example bears many
of the characteristics of a taonga, we do
not think state law should treat it as such. To take this view we would have to
first conclude
that tikanga Māori as a set of values and ideas can exist
independently from the context in which they are derived – in
other words,
that tikanga Māori and te ao Māori are severable.
- 3.50 Although we
received some feedback that this is an arguable position, we have concluded that
this approach requires further exploration
before it could support such a
significant change in the law. Instead, we consider that the identity of a
taonga and the obligations
that attach to it are derived from the tikanga that
exists in the relevant Māori context.
- 3.51 Therefore,
these types of items must continue to be passed on to the next generation using
state law devices, such as through
the deceased’s will, through lifetime
gifting or using a trust.
- 3.52 In the
Issues Paper, we discussed whether taonga should have a prescriptive definition
within the new Act or be defined pursuant
to tikanga Māori. We prefer a
definition that references the relevant tikanga for several reasons:
(a) The tikanga applicable to any given taonga may vary across whānau and
hapū. A prescriptive definition would fail to
recognise this.
(b) By defining taonga pursuant to tikanga, it will be necessary in most cases
for the court to obtain a cultural report, hear expert
evidence from witnesses
or appoint a pūkenga to assist the court.
(c) Legislation lacks the inherent flexibility needed to maintain a prescriptive
definition that would align with tikanga Māori
as it adapts to changing
circumstances through time.
(d) Our view of taonga relies heavily on contextual analysis to determine
whether something is a taonga or not. A prescriptive definition
may undesirably
limit a decision-maker’s ability to analyse the circumstances before
them.
- 3.53 Lastly, we
recognise that whenua Māori is a taonga tuku iho and Māori may wish
for their whenua to be excluded from
the application of state succession law
generally. We also recognise that the distinction TTWMA draws between general
land and Māori
freehold land is not a distinction that is drawn in te ao
Māori. In our view, policy decisions regarding whenua Māori must
be
made considering all whenua Māori and not just whenua classed as general
land. If, for example, a definition of taonga included
general land but not
Māori freehold land, some Māori may feel that, in order to exercise
tino rangatiratanga over their
whenua, they would have to convert their land to
general land. To avoid potential conflicts such as this, we recommend that the
definition
of taonga should exclude all land. Further discussion between
Māori and the Crown may be required in relation to these broader
questions
about whenua Māori.
CHAPTER 4
Relationship property entitlements
IN
THIS CHAPTER, WE CONSIDER:
- the relationship
property entitlements a person has on the death of their partner; and
- the specific
rules of relationship property division that apply.
CURRENT LAW
- 4.1 The
Property (Relationships) Act 1976 (PRA) directs how couples should divide their
property when a relationship ends because
the partners have separated or because
one of the partners has died.
- 4.2 The property
division rules only apply when the relationship that ended was a marriage, civil
union, or de facto relationship
of three years or longer. The PRA defines a de
facto relationship as a relationship between two people who “live together
as
a couple”.138F[139] De
facto couples in relationships of less than three years will not be required to
divide property unless they satisfy additional
criteria.139F[140] Māori
customary marriage does not carry with it rights to property held by the other
spouse, yet if a couple in a customary
marriage are deemed to be in a de facto
relationship for the purposes of the PRA, they may have rights to property they
would not
otherwise have under
tikanga.140F[141]
- 4.3 To determine
which property a couple should divide, the PRA first classifies certain items of
property as relationship property.
Broadly, relationship property comprises
property the partners acquire during the relationship, property acquired for the
partners’
common use or common benefit and the family home and family
chattels.141F[142]
- 4.4 On division,
each partner is generally entitled to an equal share in the relationship
property.142F[143]
- 4.5 When a
partner in a qualifying relationship dies, Part 8 of the PRA provides the
surviving partner with a choice. They
may:143F[144]
(a) divide the couple’s relationship property (option A); or
(b) accept whatever gifts are made for them under the deceased’s will or
their intestacy entitlements (option B).
- 4.6 A surviving
partner who wishes to choose option A or B must complete and sign a written
notice in a prescribed form indicating
that choice and generally must do so
within six months from the grant of administration in Aotearoa New
Zealand.144F[145] The notice must
include or be accompanied by a certificate signed by a lawyer and certifying
that the lawyer has explained the effect
and implications of the
notice.145F[146]
- 4.7 A surviving
partner must have chosen option A to commence proceedings under the
PRA.146F[147] The court may extend
the time for making the
choice.147F[148] If a surviving
partner makes no election within the relevant timeframe, including any extended
timeframe, they are deemed to have
chosen option
B.148F[149] Under section 69(2), a
court may set aside a surviving partner’s chosen option on certain grounds
and where satisfied, having
regard to all the circumstances, that it would be
unjust to enforce the
choice.149F[150]
- 4.8 If the
surviving partner elects option A, the PRA’s property division rules will
apply with some
modification.150F[151] However,
every gift to the surviving partner in the deceased’s will is to be
treated as having been revoked unless the will
expresses a contrary
intention.151F[152]
Policy behind Part 8 of the PRA
- 4.9 The
PRA rests on the theory that a qualifying relationship is a joint venture
between the partners to which each partner contributes
in different but equal
ways.152F[153] Each partner
therefore has an entitlement to an equal share of the couple’s
relationship property.
- 4.10 The policy
basis of Part 8 is that the surviving partner should receive, at a minimum, the
same entitlements they would have
if the relationship had ended by separation.
In other words, the law ensures the surviving partner is not worse off than if
the couple
had
separated.153F[154]
- 4.11 The
surviving partner’s right to choose option A or option B is to avoid
forcing a compulsory property division on couples
who are content to have the
surviving partner’s entitlements determined by the deceased’s will
or the intestacy
rules.154F[155]
- 4.12 The
rationale for revoking the gifts to a surviving partner when they choose option
A is to avoid the surviving partner receiving
more property than the deceased
intended.155F[156]
Particular rules of relationship property division on
death
- 4.13 There
are some differences between Part 8 of the PRA and the rules of relationship
property division that apply when partners
separate. These are of particular
note:
(a) All property the deceased partner owned at their death is presumed to be
relationship property.156F[157]
The person who asserts the property is not relationship property carries the
burden of proving that assertion.
(b) Property acquired by the estate is presumed to be relationship
property.157F[158]
(c) Property acquired by the surviving partner after the death of the deceased
partner is separate property unless the court considers
that it is just in the
circumstances to treat that property or any part of it as relationship
property.158F[159]
- 4.14 The rules
that apply to marriages and civil unions of short duration that end on
separation do not apply when a partner dies.
Rather, those relationships will be
subject to equal sharing unless the court, having regard to all the
circumstances of the marriage
or civil union, considers that equal sharing would
be unjust. De facto relationships of short duration, on the other hand, must
still
satisfy the same strict eligibility criteria that apply to relationships
ended by
separation.159F[160]
NGā TIKANGA
- 4.15 The
traditional roles of men and women in Māori society can only be understood
in the context of the Māori world
view.160F[161] Marriage was not a
formal ceremony but relied upon the public expression of whānau approval
for validity.161F[162] Marriage
was a relationship of importance for the whānau and hapū as much as
the spouses because it provided links between
different whakapapa lines and gave
each new members.162F[163]
However, while marriage was highly valued, it was not given absolute precedence
over other relationships because of the importance
of
whakapapa.163F[164] Māori
hold commitment to partner and commitment to descent in
tension.164F[165]
- 4.16 Men and
women were considered an essential part of the collective whole, with women
playing a particular role in linking the
past, present and
future.165F[166] Women were
nurturers and organisers, valued within their whānau, hapū and
iwi.166F[167] Women of rank
maintained powerful positions within the social and political organisations of
their tribal nations.167F[168]
Both men and women had the capacity to hold property, in contrast to that of
their Pākehā
contemporaries.168F[169] Marriage
did not change this, as women continued to hold land that they held prior to
marriage and decisions regarding it were theirs
to make, subject to the wider
community interests.169F[170]
- 4.17 The primary
social unit for Māori is the
whānau.170F[171] Professor
Jacinta Ruru notes two distinct views on defining whānau
membership.171F[172] The first is
a “descent-based” view, whereby membership is defined exclusively by
descent and excludes most partners.
The word “whānau” has
another meaning of “to give birth”, which accords with this
descent-based view.172F[173] The
second is an extended view whereby those who participate in whānau
activities are included. Although both views must be
held for an understanding
of whānau, the descent-based view comes to the fore in connection with the
management of group property
and the passing down of mana, land rights and the
trusteeship of taonga.173F[174]
Ruru also notes the varying degrees to which Māori nuclear families remain
part of a wider
whānau.174F[175]
- 4.18 The
operation of whanaungatanga, aroha and manaakitanga mean whānau take care
of their members, including undoubtedly a
pouaru (bereaved partner). This is
likely to manifest itself in care not only for the pouaru but for any children
of the relationship
and likely involve whānau of both partners.
RECOMMENDATIONS IN THE PRA REVIEW
- 4.19 In
the PRA review, we made several recommendations for reform of the rules that
apply to property division on separation that
are relevant to division on
death.
- 4.20 We
concluded that change to the classification of relationship property is
required. We recommended that property should be classified
as relationship
property if
it:175F[176]
(a) was acquired for the partners’ common use or common benefit;
(b) was acquired during the relationship other than as a third-party gift or
inheritance; or
(c) is a family chattel.
- 4.21 On this
basis, a family home should be a partner’s separate property if it was
acquired before the relationship or as a
gift or
inheritance.176F[177] However, we
recommended that the increase in value of a separate property family home during
the time it is used as the family home
should be relationship property. Any
repayment of the principal amount owing on a mortgage debt relating to the
family home using
relationship property should entitle the non-owning partner to
compensation.
- 4.22 We favoured
allocating the burden of proof of establishing whether property is separate
property to the partner that owns the
property.177F[178]
- 4.23 We
recommended excluding “items of special significance” from the
definition of family chattels in addition to the
current exclusions for
heirlooms and taonga. As a result, they would not be classified as relationship
property simply because they
were used by the
family.178F[179] We said items of
special significance should be defined as items that:
(a) have a special meaning to a partner; and
(b) are irreplaceable, in that a similar substitute item or its monetary value
would be an insufficient replacement.
- 4.24 We
recommended the continuation of the general rule of equal sharing of
relationship property.179F[180] We
also favoured the continuation of an exception to equal sharing for cases where
extraordinary circumstances make equal sharing
repugnant to justice but with
greater clarity about when a court may take misconduct into
account.180F[181]
- 4.25 We
recommended the introduction of Family Income Sharing Arrangements (FISAs) to
share the economic advantages and disadvantages
arising from a relationship or
its end. We recommended measures to strengthen children’s interests and
participation in relationship
property proceedings. We discuss the
recommendations regarding FISAs and children’s interests further in later
chapters.
- 4.26 We
recommended that the framework of the proposed new Relationship Property Act
should continue to respond to matters of
tikanga.181F[182] We asked in
consultation whether there should be a separate regime for relationship property
division according to tikanga Māori.
However, the feedback we received did
not call for such reform. Instead, we recommended several ways in which the
reformed legislation
could accommodate and respond to matters of tikanga
Māori,
including:182F[183]
(a) the proposed new Relationship Property Act should incorporate a revised
statement of principles, which would include addressing
that a just division of
relationship property recognises tikanga Māori;
(b) Māori land should be excluded from division;
(c) protections should exist so a partner does not have to relinquish taonga on
separation; and
(d) several measures to strengthen the ability of te Kōti Whānau |
Family Court to consider matters of tikanga.
ISSUES
Criticisms of the approach taken in Part 8 of the
PRA
- 4.27 There
is criticism that a partner, having chosen option A, must forgo their
entitlements under the deceased’s
will.183F[184] The argument is
that, by claiming their share of relationship property, surviving partners are
taking what is rightfully theirs.
By denying the partner the right to inherit
from the deceased on top of receiving their share of relationship property, the
partner
unjustly forfeits their rights under succession law.
- 4.28 A
will-maker can avoid this outcome by stating that the provision for the
surviving partner under the will is to remain even
if the surviving partner
chooses option A (a contrary intention provision). Critics argue, however, there
is anecdotal evidence that
will-makers seldom include a contrary intention
clause in their will because they are unaware of the surviving partner’s
rights
to choose option
A.184F[185]
- 4.29 On the
other hand, we have heard concerns that Part 8 of the PRA provides a surviving
partner with too great an entitlement.
Those concerned gave the example of
people who enter relationships late in life and bring property acquired
beforehand, possibly
during a previous relationship. Even when the relationship
lasted only a few years, the surviving partner would share in half the
relationship property, potentially affecting the inheritance of the
deceased’s children.
Criticism of the classification rules in Part 8 of the
PRA
- 4.30 The
presumptions in Part 8, that property of the estate is relationship property
unless proven otherwise, have been criticised.
The evidential burden on the
personal representatives is difficult to discharge. We have heard that the
presumptions are particularly
unsuited to short relationships between people
later in life because those relationships are unlikely to generate substantial
relationship
property.
Criticism of the rules relating to qualifying relationships
in Part 8 of the PRA
- 4.31 We
have heard concerns that the different treatment between marriages and civil
unions of short duration and de facto relationships
of short duration is
discriminatory. Some argue the same rules should apply to all, recognising that
the death of a de facto partner
is an involuntary end to the relationship in the
same way as the death of a spouse or civil union partner.
- 4.32 A further
issue arises concerning former partners. Currently, Part 8 of the PRA applies to
former spouses and civil union partners
provided not more than 12 months have
elapsed since any dissolution
order.185F[186] In contrast, no
time limit applies to former de facto
partners.186F[187] The omission of
a time limit is probably an oversight as it is unlikely Parliament intended
former de facto partners’ relationship
property rights to revive on death
if they were out of time to bring proceedings following
separation.187F[188]
Unequal sharing of relationship property
- 4.33 Difficulties
may arise when applying the PRA’s exceptions to equal sharing to
relationship property division on death.
If there are extraordinary
circumstances that would make equal sharing repugnant to justice, the court may
order that relationship
property be divided based on the partners’
contributions to the
relationship.188F[189] In the PRA
review, we recommended that this provision should continue. We added that, when
deciding whether there are extraordinary
circumstances that make equal sharing
repugnant to justice, a court should be able to take into account a
partner’s gross misconduct
when that misconduct has significantly affected
the extent or value of relationship property.
- 4.34 When
applying these provisions to relationships ending on death, the deceased would
not be able to respond to allegations of
misconduct made against them. Personal
representatives may struggle to refute or substantiate arguments about the
extraordinary circumstances
and the partners’ respective contributions to
the relationship.
- 4.35 These
discretionary exceptions to equal sharing are likely to cause uncertainty and
lead to disputes. The parties may find it
difficult to predict a surviving
partner’s likely relationship property entitlements. As entitlements in
these circumstances
are more contestable, disputes are more likely to arise that
cannot be settled by the parties without the court’s intervention.
Efficient estate administration may be undermined.
Limited recognition of tikanga in the PRA
- 4.36 In
the PRA review, we observed that the PRA recognises tikanga in the exclusion of
Māori land from the ambit of the PRA
and the exclusion of taonga from the
definition of family chattels.
- 4.37 The PRA
regime is underpinned by a strong presumption of equal sharing of relationship
property. We do not suggest that the contributions
to a relationship that give
rise to a presumption of equal sharing under state law are not given equal
weight from a Māori perspective.
In fact, traditionally, Māori valued
the contributions of women much more than their colonial
counterparts.189F[190] However,
whether those contributions should give rise to a legal presumption of equal
sharing may be less clear if more weight is
afforded to descent lines. This may
also be affected by the nature of the property being considered.
RESULTS OF CONSULTATION
- 4.38 The
Commission received submissions regarding relationship property on both the
consultation website and the Issues Paper.
Issues
- 4.39 Just
under half of the submitters to the Issues Paper who addressed the chapter on
relationship property expressly agreed that
the Commission had correctly
identified all the relevant issues in this area as discussed above. No submitter
disagreed with any
of the issues identified by the Commission.
- 4.40 Of the
submitters to the consultation website, most who commented on the current law
raised concerns. Some felt that the current
law did not do enough to protect
surviving partners, particularly to protect their right to remain in the family
home.190F[191] Others thought that
the law could result in unfair outcomes for the deceased’s children,
especially in the case of subsequent
relationships. These submitters often
commented that the assets had been built up by the deceased and possibly their
previous partner
(the children’s parents).
Obligations to a surviving partner in te ao
Māori
- 4.41 In
Chapter 8 of the Issues Paper, we asked several questions about obligations to a
surviving partner in te ao Māori. We
asked whether obligations sourced from
tikanga exist from a deceased partner to a surviving partner in relation to
property, particularly
how tikanga might respond to the division of relationship
property on death.
- 4.42 The few
submitters that responded to these questions recognised obligations to a
surviving partner arising primarily from whanaungatanga,
but also manaakitanga
and aroha. There was an emphasis on whakapapa and how that related to a
surviving partner. Submitters acknowledged
the need to balance obligations to a
surviving partner with wider whanaungatanga obligations.
- 4.43 Te Hunga
Rōia Māori o Aotearoa (THRMOA) commented favourably on the approach in
Te Ture Whenua Maori Act 1993 of allowing
a surviving partner to take a life
interest and receive certain benefits from the estate but excluding the ability
to obtain interests
in whenua Māori. THRMOA also noted examples within some
whānau, hapū and iwi to leave land to the wāhine line,
including
potentially to a surviving partner who may not whakapapa to the land –
although, in these situations the land would
be held in accordance with tikanga
and the surviving partner would be subject to obligations to the wider
whānau.
- 4.44 Some
submitters, including THRMOA and Chapman Tripp, explained the importance of
kōrero and arriving at a whānau consensus,
potentially guided by an
independent pūkenga (expert). They said that automatic provisions or
presumptions such as those in
the PRA are inconsistent with tikanga to the
extent that they do not necessitate kōrero and respond to the particular
circumstances.
THRMOA noted that prescribed rules generally will not accord with
tikanga although this may depend on the type of property. For example,
it will
not be appropriate to apply the PRA’s presumption of equal sharing to
Māori land or taonga as these will be subject
to whānau and whakapapa
considerations as well as any considerations of utu.
- 4.45 Additionally,
MinterEllisonRuddWatts said that further thought should be given to how well the
concept of relationship property
translates to a tikanga Māori world
view.
Continued right to choose to divide relationship
property
- 4.46 In
the Issues Paper, we presented a preliminary view that surviving partners from a
qualifying relationship should continue to
have available to them a right under
the new Act to a share of the couple’s relationship property. Many
submitters to the Issues
Paper, including Public Trust, Chapman Tripp,
MinterEllisonRuddWatts, Chris Kelly, TGT Legal, Perpetual Guardian, Jan
McCartney QC
and Bill Patterson, expressed broad general agreement with most or
all of the proposals relating to relationship property. This was
subject to the
specific comments detailed below.
- 4.47 Around
two-thirds of submitters to the consultation website supported our proposal to
retain the law that allows a surviving
partner to choose to divide relationship
property. Several submitters agreed that a surviving partner should be allowed
to choose
to divide relationship property but only in some circumstances, such
as when there was not a will or where the surviving partner
is in financial
need.
- 4.48 For those
submitters to the consultation website that did not support the partner’s
right to choose a division, many said
that priority should be given to the
deceased’s wishes, as evidenced in their will, and that the will should
not be overridden.
Several other submitters suggested that the law needed to
reflect the reality of the couple’s circumstances and the assets
that each
party has brought into the relationship. Fairness was also raised by some
submitters. They said that it would be unfair
to the deceased or their children
if a partner could take half of a house that they did not contribute to
purchasing.
The requirement to elect option A or B
- 4.49 Several
submitters, including Patterson, Kelly, Michael Reason and Azania Watene in
their joint submission and Succeed Legal
expressed concerns about the
requirement to formally choose option A or B and give notice of their
choice.191F[192] These submitters
considered that the process was unnecessary, complicated and costly and may lead
surviving partners to make hasty
decisions without full knowledge of the estate.
Reason and Watene submitted that it is cumbersome to require several time limits
to be respected. Succeed Legal submitted that the election process should be
made more accessible and less abrasive as often a surviving
partner does not
want to take the step of obtaining independent legal advice because it can feel
like they are questioning the will
and wishes of their life partner.
- 4.50 Patterson
and Kelly submitted that the option A or B election process should be removed
entirely, meaning that a surviving partner
would simply have 12 months to bring
a relationship property claim comparable to the Family Protection Act 1955 and
the Law Reform
(Testamentary Promises) Act 1949 or the new proposed claims.
Personal representatives would be free to distribute an estate after
six months
of the date of the grant of administration unless they had received notice of a
surviving partner’s claim. Patterson
also submitted that removing the
option A or B procedure would also remove an impediment to partners obtaining
grants of
administration.192F[193]
- 4.51 In the
Issues Paper, we commented that the grounds under section 69(2)(a) of the PRA
for setting aside a partner’s choice
of option A or B might be too
limited. Even if the application is uncontested, the courts are confined to
these grounds. Public Trust
and Te Kāhui Ture o Aotearoa | New Zealand Law
Society (NZLS) supported the court having greater flexibility to set aside a
chosen option. MinterEllisonRuddWatts submitted that the court’s
jurisdiction to set aside a surviving partner’s choice
of option should be
limited to the existing grounds in section 69(2)(a) or where the application is
uncontested or supported by all
parties. The Family Law Committee of Auckland
District Law Society (ADLS) suggested that an additional ground should be
included
where the personal representative had not disclosed to the surviving
partner the nature and value of the estate’s assets and
liabilities, with
supporting corroborating documentation.
- 4.52 Lastly,
several submitters commented that it was reasonable for a surviving partner to
have given notice of their choice within
six months of the date of the grant of
administration. These submitters included Public Trust, NZLS, ADLS and
MinterEllisonRuddWatts.193F[194]
Top-up approach
- 4.53 In
the Issues Paper, we proposed a change to the rule that revokes gifts to the
surviving partner if they elect to divide relationship
property when the
deceased partner has a will. Instead, we proposed that the surviving partner
would keep their gifts under the will
and the value of these gifts would be
included in their total share of relationship property (the top-up
approach).
- 4.54 There was
broad general support for the top-up
approach.194F[195] This included
express agreement from Public Trust, Chapman Tripp, Succeed Legal and
MinterEllisonRuddWatts. These submitters endorsed
the proposal’s potential
to uphold the deceased’s intentions under the will and make administering
the estate simpler.
- 4.55 Several
submitters to the consultation website noted that difficulties can arise when
valuing property. They said that a top-up
approach may increase the number of
items that must be valued or require property to be valued with more precision,
which can be
problematic when life interests are involved or in the context of
rapidly increasing house prices.
- 4.56 Morris
Legal suggested that the top-up be an additional option to the current option A
because requiring a top-up may impose
restrictions on the surviving
partner’s ability to retain assets that are important and/or useful to
them, particularly the
family home.
- 4.57 McWilliam
Rennie objected to the proposal on the grounds that the relationship property is
property belonging to the partner
and therefore the partner should be entitled
to both this and the gifts to them in the will. McWilliam Rennie acknowledged
that this
would require specific advice from lawyers drafting wills as to the
effect of the PRA on their estate.
Qualifying relationships
- 4.58 In
the Issues Paper, we expressed our preliminary view that the same qualifying
criteria that apply to relationships ending on
separation should apply to
relationships ending on death under the new Act. Consistent with our
recommendations in the PRA review,
we proposed that the new Act should apply to
all marriages and civil unions irrespective of their length and that de facto
relationships
of less than three years should not qualify for a relationship
property division on the death of a partner unless the relationship
meets the
additional eligibility criteria.
- 4.59 We received
varied views on the proposed definition of a qualifying relationship. Although
there was broad general support for
the Commission’s proposals, few
website submitters commented specifically on the proposed changes to the
definition of the
qualifying relationship. Some submitters to the Issues Paper,
including Perpetual Guardian and ADLS, agreed in principle with the
proposals
but noted that issues may arise in short-term relationships.
- 4.60 For ADLS
and several other submitters, three years is not an adequate length of time to
qualify for an equal division of relationship
property when the relationship
ends on death or separation. Members of the Family Law Committee of ADLS were
divided between five
and seven years as appropriate alternatives. Seven or 10
years were presented as alternatives in submissions on the website, and
one
submitter considered that a relationship property claim should only be available
to married partners.
- 4.61 Several
submitters, including Public Trust, Succeed Legal, McWilliam Rennie and TGT
Legal, took issue with the proposals that
could result in the different
treatment of de facto relationships of short duration compared with marriages or
civil unions of short
duration. These submitters generally preferred that the
new Act apply the special rules for short-term relationships to all relationship
types, including marriages and civil unions.
Māori customary marriages
- 4.62 We
did not receive many submissions regarding Māori customary marriages.
Professor Jacinta Ruru and Chapman Tripp submitted
that Māori customary
marriage should be recognised in state law separately to meeting the
requirements of a de facto relationship.
Conversely, ADLS submitted that
customary marriage should not be recognised in state law.
- 4.63 THRMOA
submitted that most (if not all) Māori customary marriages would satisfy
the requirements of a de facto relationship
under state law and therefore the
need for a separate system may not be necessary. However, THRMOA stated that a
Māori customary
marriage that does not take the form recognised by state
law should not be precluded as a valid form of relationship for the purpose
of
succession, and tikanga should apply in these situations.
- 4.64 NZLS
submitted that there should be wider consultation with Māori on whether, in
2021, customary Māori marriage in
accordance with tikanga should be
provided for in state law. NZLS commented on the legal history of the
intersection of state law
and Māori customary marriage and noted that
earlier issues such as the recognition of the legitimacy of a child and access
to
family benefits no longer exist.
Separated partners
- 4.65 In
the Issues Paper, we proposed that all former spouses and partners should remain
eligible for relationship property division
under the new Act provided no longer
than two years have elapsed between the partners ceasing to live together in the
relationship
and the time a partner
dies.195F[196]
- 4.66 Most
submitters who commented on the proposed changes to the eligibility of separated
partners generally supported the proposals.
This included Public Trust, ADLS,
TGT Legal and McWilliam Rennie. Submitters noted that a consistent time limit
applying to all former
partners would limit misunderstanding and confusion.
Public Trust also noted the benefit of consistency with the two-year timeframe
that a married couple or civil union partner must be living apart before a
dissolution order can be granted. Chapman Tripp considered
that a more
comprehensive test should be applied in assessing the separation than simply the
passage of time. Morris Legal proposed
that the period should reflect the
approach currently taken under the
PRA.196F[197]
Contemporaneous partners
- 4.67 We
received several submissions regarding our proposals for apportioning
relationship property under the new Act that is contested
between two or more
qualifying relationships. Consistent with our recommendations in the PRA, we
proposed in the Issues Paper that
the court should apportion it in accordance
with the contribution of each relationship to the acquisition, maintenance and
improvement
of that property.
- 4.68 TGT Legal
and McWilliam Rennie agreed with the proposals. Public Trust said that they
agreed in principle with the proposals
but thought that practical problems may
arise, for example, when trying to determine what constitutes maintenance and
improvement.
ADLS commented that the rules for apportioning contested
relationship property should be determined in accordance with the contribution
of each partner to their relationship with the deceased, in accordance with the
principles under section 18 of the PRA, so that monetary
contributions are not
presumed to be of greater value than non-monetary contributions.
Classification and division of relationship
property
- 4.69 In
the Issues Paper, we expressed our preliminary view that a surviving
partner’s relationship property entitlements should
be based on the
classification and division rules recommended in the PRA review that would apply
when partners separate, including
that:
(a) property acquired before the relationship or as a gift or inheritance should
be separate property, including the family home;
(b) the burden of proof of establishing whether property is separate property
should be on the party that owns the property; and
(c) the court should have discretion to order unequal division of relationship
property where there are extraordinary circumstances
that make equal sharing
repugnant to justice.
- 4.70 The
submitters who specifically commented on the classification proposals generally
expressed their agreement. This included
Public Trust, ADLS, TGT Legal and
McWilliam Rennie. TGT Legal also commented that education will be needed to
assist the public to
understand the classification and for proving what is
separate property.
- 4.71 Reason and
Watene opposed the proposals relating to the family home. In their view, the
family home should be relationship property
and available for division even if
it was a gift or inheritance. They said that dividing property based on
contribution lacks simplicity
and clarity and will result in more wealth being
lost to legal costs.
- 4.72 Morris
Legal commented that excluding items of special significance from the definition
of family chattels when the relationship
ends on death might lead to an increase
in litigation.
- 4.73 Most
submitters to the consultation website broadly agreed with the proposed changes
to the definition of relationship property.
Several submitters expressly stated
that they agreed with the proposal to treat only the family home’s
increase in value as
relationship property where that home was owned by one
party prior to the beginning of the relationship.
- 4.74 The
remaining submitters who did not agree did so for varying reasons. Most
suggested that a surviving partner should be given
occupation rights to the
family home for a specified period. Suggestions varied from a life interest to a
grace period of six months
to two years. A smaller group of submitters
considered that not even the increase in value of a family home should be
considered
relationship property if it was purchased prior to the relationship
unless that was stated in the will. Several submitters stated
that the surviving
partner should only be entitled to the value of their contributions to the
property or the relationship.
CONCLUSIONS
- 4.75 In
both the PRA review and the consultation in this review, we received few
responses to our questions about tikanga and state
law in respect of the
division of property when a relationship ends. No submitter called for
fundamental reform of relationship property
law according to tikanga at this
time.197F[198]
- 4.76 Whanaungatanga,
manaakitanga, tiakitanga and aroha may establish obligations to a surviving
partner in tikanga. It is also possible
that the outcomes achieved in some cases
by applying relationship property division rules may be substantially similar to
the outcomes
achieved by applying tikanga. However, two potentially fundamental
differences must be considered.
- 4.77 First,
obligations in tikanga to a surviving partner do not necessarily translate to
property rights. A whānau may take
on obligations to care for a partner
without this involving any property entitlement, or a surviving partner might
acquire rights
that are less than ownership, such as occupation rights.
Furthermore, the concept of relationship property as determined under state
law
does not necessarily translate in tikanga Māori. As Ruru said in her
submission in the PRA review, enabling a just division
of property from a
Māori perspective requires creating a justice system that is able to
understand the complexities of Māori
property law and
relationships.198F[199]
- 4.78 Second,
although state law rules such as the general rule of equal division are
beneficial for enabling certainty and efficiency,
they may not facilitate the
necessary kōrero between interested whānau members. In Chapter 10 we
recommend no procedural
requirements for parties who wish to enter settlement
agreements to resolve disputes under the new Act or the intestacy provisions
in
the Administration Act 1969. This will enable whānau to engage in
tikanga-based processes. We also recommend in Chapter 13
that the new Act should
expressly endorse tikanga-based dispute resolution.
- 4.79 Consequently,
we conclude that state law should continue to provide all surviving partners
with a right to elect a share of relationship
property. To the extent this
approach is not consistent with tikanga, where all whānau members and other
affected parties agree,
they may decide on an alternative distribution of the
estate pursuant to tikanga through improved processes to facilitate that
kōrero.
- 4.80 We do not
recommend reform to recognise or provide specific rules for Māori customary
marriage in the new Act at this time.
This is an important issue and one that
has significance for other areas of law beyond the new Act. The low number of
submissions
on this issue makes it difficult to assess the extent of Māori
support for and the nature of any desirable
reform.199F[200] In our view, how
Māori customary marriage should be recognised under the new Act should be
part of a broader conversation about
the relationship between Māori and the
Crown. Such a conversation ought to consider how Māori customary marriage
should
be accommodated in other areas of law, in particular, the Marriage Act
1955.
RECOMMENDATIONS
R7
A
surviving partner from a qualifying relationship should have a right under the
new Act to choose a division of relationship property
on the death of their
partner.
R8
The option A/option B election process in Part 8 of the Property
(Relationships) Act 1976 should not be continued in the new Act.
R9
If a surviving partner chooses a relationship property division and there is
a will, they should keep whatever gifts are made for
them under the will. They
should then receive from the estate whatever further property is needed to
ensure they receive the full
value of their relationship property
entitlement.
R10
Where it is necessary to avoid undue disruption to a surviving
partner’s life, a court should have discretion to replace property
the
surviving partner would otherwise receive under the will with particular items
of relationship property provided the surviving
partner does not receive
property of a value greater than their relationship property interest in the
estate.
Relationship property entitlements should remain available
for surviving partners
- 4.81 We
recommend that a surviving partner from a qualifying relationship has available
to them a right under the new Act to a share
of the couple’s relationship
property. The extent of that entitlement should be based on the property
division rules that apply
when couples separate and subject to the terms of any
valid contracting out agreement the partners have
entered.200F[201] The new Act
should continue the policy that a surviving partner should not be worse off on
the death of their partner than they would
have been had they separated from
their partner.
- 4.82 Our reasons
are as follows:
(a) The theory that a partner in a qualifying relationship has an entitlement to
an equal share of the relationship property arising
from their contributions to
the relationship is sound. A relationship can be understood as a family joint
venture to which the partners
contribute equally but often in different ways. It
remains appropriate, in our view, that the purpose of the relationship property
regime continues to be a just division of property in which partners share in
the fruits of the family joint venture — the
product of their combined
contributions — when a relationship
ends.201F[202]
(b) It is an accepted part of New Zealand law that partners have relationship
property entitlements when a relationship ends by separation
or on death.
(c) The policy appears to be consistent with public attitudes and expectations.
In the Succession Survey, respondents were asked
about a situation where a man
dies and is survived by his two adult children from his first marriage and his
second wife to whom
he had been married for 10 years. The couple’s family
home was bought by the husband during the second marriage. In his will,
the man
left the home to his children even though, had the couple divorced, the wife
would have been entitled to a half share of
the home. Over 75 per cent of
respondents either agreed or strongly agreed that the wife should be entitled to
at least a half share
of the home regardless of what the will
said.202F[203]
(d) Most submitters supported this proposal.
(e) The recommendations from the PRA review, if implemented, will address some
of the concerns about the current law relating to
equal sharing of relationship
property when the property has been acquired before the relationship.
- 4.83 We do not
consider the law should require a relationship property division in all cases.
That would be a significant shift in
the law. We are also mindful that, in most
cases, will-makers provide generously for their
partners.203F[204] We therefore
recommend that a partner should continue to be entitled to elect a relationship
property division, although, as set
out below, we recommend reform for how that
election should be made.
- 4.84 A surviving
partner is likely to elect a relationship property division only where the
deceased intended to leave the surviving
partner less than their relationship
property entitlement. If a partner chooses a relationship property division, we
do not consider
the law should allow the partner to take their share of
relationship property plus gifts under the will, unless the will displays
a
contrary intention.
- 4.85 Where a
partner dies intestate and a surviving partner elects a relationship property
division, the current law should continue.
The surviving partner should have no
entitlement under the intestacy regime but instead receive their relationship
property entitlement.204F[205]
The option A/option B election process should not be
continued in the new Act
- 4.86 We
recommend repealing the process to elect option A or option B currently
contemplated in section 65 of the
PRA.205F[206] Instead, a surviving
partner would elect a relationship property division by exercising their right
to claim in the same way as the
other claims under the new Act. This would mean
a surviving partner would simply have the option to commence a relationship
property
claim within 12 months of the grant of administration in Aotearoa New
Zealand.206F[207]
- 4.87 We received
several comments about the complexity of the current process, which requires
formal notice and certification from
a lawyer. Submitters said that the process
lacks accessibility and adds unnecessary cost. In some cases, a surviving
partner may
spend time and money on the formal notice and discover later, once
they have full knowledge of the estate assets and liabilities,
that it is not
worth pursuing a division. The surviving partner may then have to apply to the
court to have their chosen option set
aside.
- 4.88 It is
uncommon for a partner to choose option A. In most scenarios, surviving partners
prefer to retain their gifts under the
will, either by formally electing option
B or by default. When a surviving partner understands the consequences of both
options and
intends to choose option B, there does not appear to be good reason
to require that partner to submit a formal notice to the personal
representative.
- 4.89 Removing
the election requirements will alleviate the pressure that some surviving
partners feel to make a hasty decision without
full knowledge of the estate. A
surviving partner would still need to notify the personal representative of
their intention to claim
a relationship property division within six months of
the grant of administration in order to prevent the estate from being
distributed.
However, it would no longer be necessary for the surviving partner
to apply to the court for either an extension of time to make
their choice or to
set aside their choice if they later decide it was the wrong choice. Instead, as
we discuss in Chapter 14, the
notification would allow the partner three months
to pursue the claim.207F[208]
- 4.90 The option
A/option B process has the benefit of requiring a surviving partner to obtain
legal advice when they make their choice.
This is useful for the circumstances
where the partner wants to divide relationship property and needs to fully
understand the impact
of making that choice. However, in some cases where the
partner wants to choose option B, it may add additional legal cost. In an
intestacy, if a surviving partner wishes to be the administrator of the estate,
they must have chosen option
B.208F[209] This choice is lodged
with the te Kōti Matua | High Court (the High Court) when the application
for the grant is made.
- 4.91 Additionally,
we consider that our recommendations around public education (Chapter 16) and
the requirement for personal representatives
to notify potential relationship
property or family provision claimants (Chapter 14) will reduce the risk that
partners are unaware
of their right to choose a division of relationship
property, the time limit for making the claim and the desirability of obtaining
independent legal advice.
The new Act should take a top-up approach to implement a
division of relationship property
- 4.92 We
recommend a change to the rule that revokes gifts to the surviving partner if
they choose a division of relationship property
when the deceased partner has a
will and that will does not express a contrary intention. The new Act should
take a “top-up”
approach.209F[210] Under a top-up
approach, when a partner chooses a division of relationship property, they would
keep whatever gifts are made for
them under the will rather than having to
forfeit them. They would then receive from the estate whatever further property
is needed
to ensure they receive the full value of their relationship property
entitlement. We consider this approach is likely to disrupt
the distribution of
an estate pursuant to the will to a lesser extent than the current law. The
top-up approach is therefore likely
to be more consistent with the
deceased’s testamentary intentions and easier for the personal
representatives to administer.
- 4.93 To
implement a division of relationship property will require the value of the
partners’ relationship property to be ascertained.
We recognise that it
can be complicated to value certain property – for example unique goods
like artworks or life interests
to occupy a home – and disputes may
result. Under the current law, it is necessary to value the estate and the
relationship
property with varying degrees of precision depending on the
circumstances.210F[211] Although
we accept that the top-up approach may result in valuing property with greater
precision in some circumstances, we believe
that, in most cases, it will
generally mean minimal or no change to the current approach.
- 4.94 The top-up
approach may also make it easier for personal representatives to implement a
relationship property division in some
circumstances. For instance, by not
revoking the gifts to the surviving partner, personal representatives will not
have to apply
the lapse provisions in the Wills Act 2007 that deal with
dispositions that
fail.211F[212]
- 4.95 The top-up
approach has the potential to restrict a partner’s ability to access
assets that may be of particular use or
importance to them. In Chapter 8, we
recommend that a court have discretion to order that the value of the top-up be
met by particular
property in the estate. We also recommend in Chapter 9 that,
in certain circumstances, a partner be able to apply for use and occupation
orders over certain property of the estate, like the family home. Use and
occupation orders would be additional to a partner’s
relationship property
entitlements.
- 4.96 In
circumstances where it does not suit the surviving partner to take the gifts
under the will as part of their total relationship
property entitlement, the
partner may come to an agreement with the affected beneficiaries different to
that prescribed by implementing
the top-up method. There may be some
circumstances, however, where the parties cannot agree. We therefore recommend
that a court
should have discretion to replace property the surviving partner
would otherwise receive under the will with particular items of
relationship
property provided the surviving partner does not receive property of a value
greater than their relationship property
interest in the estate. The discretion
should only be exercised when it is necessary to avoid undue disruption to the
surviving partner’s
life. The court should consider the impact on affected
beneficiaries in making the order and whether that outweighs the disruption
to
the surviving partner if the order was not made. This threshold is purposefully
high so as not to disrupt the will-maker’s
testamentary intentions and the
efficient administration of the
estate.212F[213]
- 4.97 Finally, a
will-maker should continue to have the option of expressing in their will their
intention for their partner to take
both their share of relationship property
and the gifts in the will.
RECOMMENDATIONS
R11
R12
R13
R14
To be eligible to choose a division of relationship property, the surviving
partner should have been in a qualifying relationship
with the deceased, being
a:
- marriage;
- civil
union; or
- de
facto relationship of three years or more.
The new Act should include a presumption that two people are in a qualifying
de facto relationship when they have maintained a common
household for a period
of at least three years as recommended in the PRA review (R26). The presumption
should be rebuttable by evidence
that the partners did not live together as a
couple, having regard to all the circumstances of the relationship and the
matters currently
prescribed in section 2D(2) of the PRA.
When the partners have not maintained a common household for three years or
more, the burden of proof of establishing that a qualifying
de facto
relationship exists should be on the applicant partner, as recommended in the
PRA review (R27).
A qualifying de facto relationship should include a de facto relationship
that does not satisfy the three-year qualifying period if
it meets the
additional eligibility criteria that:
- there
is a child of the relationship and the court considers it just to make an order
for division; or
- the
applicant has made substantial contributions to the relationship and the court
considers it just to make an order for division.
(See R29 in the PRA
review.)
R15
R16
Where partners have separated prior to death, the surviving partner should
remain eligible to claim under the new Act provided no
longer than two years
have elapsed between the partners ceasing to live together in the relationship
and the time a partner dies.
The court should have discretion to allow an
application when separation occurred more than two years before death.
The time period in which partners must apply for a relationship property
division on separation when neither partner has died should
be made consistent
with the rules that apply to relationships ending on death.
The new Act should provide for contemporaneous relationships in a stand-alone
provision that:
- applies
whenever property is the relationship property of two or more qualifying
relationships (contested relationship property);
and
- requires
a court to apportion contested relationship property in accordance with the
contribution of each relationship to the acquisition,
maintenance and
improvement of that property.
(See R33 in the PRA review.)
Qualifying relationships
- 4.98 Consistent
with our recommendations in the PRA review, we recommend that the new Act should
apply to all marriages and civil
unions irrespective of their length. However,
de facto relationships of less than three years should not generally qualify for
a
relationship property division on the death of a partner.
- 4.99 As
explained in the PRA review, there are two broad objectives of a qualifying
period for de facto relationships ending on
separation.213F[214] They are
equally relevant to relationships ending on death. First, it is a measure of
commitment between the partners in the absence
of a deliberate decision to
formalise the relationship. Second, it acts as a safeguard against the
retrospective imposition of property
sharing obligations on unsuspecting
partners.
- 4.100 We
acknowledge that several submitters felt that three years was not an adequate
length of time to qualify for an equal division
of relationship property on the
death of a partner. Although the diversity of de facto relationships means it is
difficult to make
generalisations about when de facto relationships reach a
level of commitment that justifies the imposition of property sharing
obligations,
we are satisfied for several reasons that it is appropriate to
continue the now well-settled three-year qualifying period used in
the
PRA:214F[215]
(a) Three years is broadly consistent with public attitudes and values as to
when a de facto relationship reaches a point of commitment
that justifies the
imposition of property sharing
obligations.215F[216]
(b) It would be consistent with the qualifying period for relationship property
division on separation. This has the important benefit
of minimising the risk of
public confusion that might arise if the qualifying period is changed (which we
noted in the PRA review
was also a reason not to change the qualifying period in
respect of relationship property division on separation).
(c) The risk of unfair outcomes in de facto relationships that only just satisfy
the three-year qualifying period will be mitigated
by implementing other
recommendations from the PRA review, including:
(i) the classification recommendations to limit equal sharing to property
acquired during the relationship or for the partners’
common use or common
benefit (discussed further below);
(ii) the recommendation that the presumption that partners are in a qualifying
de facto relationship if they have maintained a common
household for a period of
at least three years can be rebutted if the evidence establishes they were not
living together as a couple
based on the factors in section
2D(2);216F[217] and
(iii) the exception to equal sharing for extraordinary circumstances that make
equal sharing repugnant to justice will continue to
be available under the new
Act (see discussion below).
- 4.101 We
recommend that the ordinary rules of equal division should apply to de facto
relationships of less than three years
if:217F[218]
(a) there is a child of the relationship and the court considers it just to make
an order for division; or
(b) the applicant has made substantial contributions to the relationship and the
court considers it just to make an order for division.
- 4.102 These
criteria provide different ways to measure commitment and should be given equal
weight to the deliberate decision to formalise
a relationship by getting married
or entering a civil union or satisfying the qualifying period.
- 4.103 As
discussed, several submitters to the Issues Paper favoured treating all
relationships of less than three years according
to the same rules, including
partners who chose to formalise their relationship within that three-year period
through marriage or
civil union. The reasons included concerns that it would be
inconsistent with societal views and would treat substantially similar
relationships differently, contrary to the principles of the PRA and at risk of
being discriminatory according to human rights law.
- 4.104 Our
reasons for applying the additional eligibility criteria only to short-term de
facto relationships are as follows:
(a) Couples in marriages and civil unions have chosen to formalise their
commitment. As Professor Bill Atkin
explains:218F[219]
- Marriage is a
public event, recorded in a public registry, with the participants more or less
knowing what they are committing themselves
to. While for many, marriage is a
social and ceremonial occasion, people are also aware that there are legal
ramifications.
(b) It appears consistent with public attitudes and values, as evidenced by the
findings of a 2018 public attitudes survey into relationship
property division
in Aotearoa New Zealand. For 70 per cent of respondents, marriage was an
important factor in deciding whether equal
sharing should apply to a
couple,219F[220] and these
respondents tended to think that the law should apply to married couples much
sooner than three years, with 47 per cent
saying the equal sharing law should
apply as soon as a couple gets
married.220F[221]
(c) We are satisfied that this different treatment is not discriminatory under
human rights law given that early-stage de facto relationships
are different in
nature to marriages or civil unions of the same
length.221F[222] In an early-stage
de facto relationship, the partners have not made a deliberate decision to
formalise their relationship and cannot
be presumed to have accepted the legal
consequences that entering into marriage or a civil union entails. Requiring the
satisfaction
of additional eligibility criteria for short-term de facto
relationships ensures the new Act treats different relationship types
that are
substantively the same in the same way and avoids imposing property sharing
obligations on de facto relationships that are
not substantively the same as
marriages or civil unions.
(d) There is an increasing trend for marriages and civil unions to be preceded
by a de facto
relationship,222F[223] which is
included when determining the length of the
relationship.223F[224] We noted in
the PRA review that the current special rules in the PRA for short-term
marriages and civil unions rarely apply in practice,
meaning that it is unusual
for marriages to commence and end within three years of the relationship
beginning.224F[225]
Separated partners’ eligibility to apply for
relationship property division
- 4.105 We
favour a single rule that determines the eligibility of former spouses, civil
union partners and de facto partners. We recommend
that former spouses and
partners should remain eligible to apply for relationship property division
under the new Act provided no
longer than two years have elapsed between the
partners ceasing to live together in the relationship and the time a partner
dies.225F[226] A two-year period
is likely to reflect a period after which former partners can reasonably be
expected to have moved on with their
lives.226F[227] Two years is also
the period that a married couple or civil union partners must be living apart
for before a dissolution order can
be
granted.227F[228]
- 4.106 The court
should have discretion to allow a partner who separated more than two years
prior to the death of the other partner
to claim, having regard
to:228F[229]
(a) the length of time between the partners ceasing to live together in the
relationship and the death;
(b) the adequacy of the explanation offered for the delay in resolving the
partners’ relationship property matters before the
death;
(c) the merits of the case; and
(d) prejudice to the beneficiaries of the estate.
- 4.107 Several
other clarifications should be made in the new Act. First, if a partner has
filed relationship property proceedings
during the period prior to death, those
proceedings should be continued, and the eligibility of the surviving partner to
apply for
property division should not be
affected.229F[230] Second, the new
Act should recognise that a separated partner’s eligibility to claim
should be subject to a valid contracting
out or settlement agreement (discussed
in Chapter 10). Third, for the avoidance of doubt, it should be clear that the
two-year period
goes to eligibility and is not a limitation period. A separated
partner who is eligible to apply for division of relationship property
will
still be subject to the time limits discussed in Chapter 12.
- 4.108 We note
that our recommendation creates inconsistency between the time limits for making
an application under the PRA on separation
compared with the proposed time limit
for the eligibility of former partners on death. On separation, a spouse or
civil union partner
has 12 months from the order dissolving the marriage or
civil union or declaring the marriage or civil union void ab initio to
make an application under the PRA, and a de facto partner has three years from
the end of the
relationship.230F[231] We
recommend that the Government should implement a single time limit applying to
all relationship types and one that is consistent
both on separation and on
death. For the reasons discussed above, our preference would be two years from
separation.
Contemporaneous relationships
- 4.109 We
consider tailored rules are required to address contemporaneous relationships.
Currently, the PRA establishes a regime for
dividing relationship property in
contemporaneous relationships, specifically when a person was a partner
in:231F[232]
(a) a marriage or civil union as well as a de facto relationship; or
(b) two de facto relationships.
- 4.110 In the PRA
review, we identified several issues with the provisions applying to
contemporaneous relationships and recommended
reform.232F[233] Those
recommendations should be adopted in the new Act. Accordingly, we recommend a
rule that applies whenever property of the deceased
comprises property that may
be relationship property of two or more qualifying relationships (contested
relationship property). That
would occur when both surviving partners from the
contemporaneous relationship claim a division of relationship property under the
new Act.
- 4.111 When
determining how to apportion the contested relationship property to meet each
surviving partner’s respective relationship
property entitlement, we
recommend that the court should apportion it in accordance with the contribution
of each relationship to
the acquisition, maintenance and improvement of that
property.233F[234]
- 4.112 We note
the apprehensions from ADLS and Public Trust about the practical application of
this proposal in certain circumstances.
ADLS submitted that the rules for
apportioning contested relationship property should be determined in accordance
with the contribution
of each partner to their relationship with the deceased,
as described under section 18 of the PRA, so that monetary contributions
are not
presumed to be of greater value than non-monetary contributions.
- 4.113 In our
view, the purpose of the rule is to apportion contested relationship property
between the two contemporaneous relationships.
It is part of the classification
exercise aiming to identify the property in which each surviving partner should
hold a relationship
property interest. It accords with the approach to
classification we set out in the PRA review, which is to classify as
relationship
property wealth generated through the relationship (“fruits
of the relationship”) and property acquired specifically
for the
relationship (“family
acquisitions”).234F[235]
Once the relationship property is identified for each contemporaneous
relationship, the general rule of equal division of relationship
property
division would apply. As ADLS noted, that division rests on the general rule
that each partner should have an equal interest
owing to an equality of
contributions to the relationship. However, to use a partner’s
contributions to the relationship to
identify property that should be classified
as relationship property is to confuse the different stages of classification
and division.
We therefore remain of the view that the better approach is to
apportion contested relationship property between relationships in
accordance
with the contribution of each relationship to the acquisition, maintenance and
improvement of that property. This is likely
to be a highly factual and
potentially difficult inquiry, but that reflects the difficult factual
situations contemporaneous relationships
present.
- 4.114 Finally,
if the Government decides to incorporate a definition of marriage into the new
Act, this definition should expressly
include valid foreign polygamous
marriages, consistent with the definition of marriage in the Family Proceedings
Act 1980 and as
recommended in the PRA
review.235F[236]
RECOMMENDATION
R17
A surviving partner’s relationship property entitlements should be
based on the classification and division rules recommended
in the PRA review
(R8–R16) that would apply when partners separate, including that:
- property
acquired before the relationship or as a gift or inheritance should be separate
property, including the family home;
- the
burden of proof of establishing whether property is separate property should be
on the party that owns the property; and
- the
court should have discretion to order unequal division of relationship property
where there are extraordinary circumstances that
make equal sharing repugnant to
justice.
Classification and division of relationship
property
- 4.115 A
surviving partner’s relationship property entitlements should continue to
be based on the classification and division
rules that apply when partners
separate. The new Act should incorporate those rules.
- 4.116 We
consider the general revisions to the definition of relationship property
recommended in the PRA review should apply under
the new
Act.236F[237] This would include
the changes recommended to the classification of the family home, family
chattels and jointly owned property,
so that relationship property includes all
property that was:
(a) acquired by either partner for the partners’ common use or common
benefit;
(b) acquired by either partner during the relationship, excluding gifts and
inheritances; or
(c) used as a family chattel.
- 4.117 Under our
recommendations, a family home will be treated in the same way as any other item
of property. When the family home
is separate property, any increase in the
value of the family home occurring during the relationship should be classified
as relationship
property in every case.
- 4.118 When the
family home was one partner’s pre-relationship property or was a gift or
inheritance, the value of the home when
the relationship began or when the
gifted or inherited property was received (original value) should be classified
as the owning
partner’s separate property. When the family home is
purchased during the relationship, it will be relationship property regardless
of the source of funds used to purchase that home because it has been purchased
for the partners' common use or common benefit. A
family home purchased in
contemplation of the relationship, for example, while the partners were dating,
will also be classed as
relationship
property.237F[238] Where a
surviving partner’s relationship property interest will not enable them to
retain possession of the family home, the
surviving partner could apply for an
occupation order to meet their accommodation needs as they transition to a life
in which they
are not dependent on the deceased’s estate for accommodation
support (see Chapter 9).
- 4.119 We
recommend that family chattels should continue to be classified as relationship
property whenever acquired, except where
the family chattel is an heirloom or
taonga, or an item of special significance.
- 4.120 We
recommend that the burden of proof of establishing whether property is separate
property should be on the party that owns
the property. This rule should apply
to all property, including property acquired after death. If a personal
representative claims
that property of the estate is separate property, they
would have the burden of proof. Similarly, a surviving partner’s property
would be classified as relationship property unless they were able to prove it
was their separate property.
- 4.121 The main
reason for allocating the burden of proof this way is to balance the position of
the estate and the surviving partner
as both would carry the burden in relation
to separate property. It also ensures consistency with the regime that the
Commission
recommended should apply to relationships ending on separation.
- 4.122 The new
Act should continue to provide a general rule that each partner is entitled to
an equal share of relationship property.
The court should, however, have
discretion to order unequal division of relationship property where there are
extraordinary circumstances
that make equal sharing repugnant to justice. When
this exception applies, the court would order that relationship property be
divided
pursuant to the partners’ contributions to the relationship.
Although we recognise the difficulties when the court is required
to make a
discretionary assessment like this, we consider they are outweighed by the
benefit of enabling the court to respond when
the facts of a case warrant
unequal division.
- 4.123 The new
Act should take an approach towards a partner’s misconduct that is
consistent with the recommendations in the
PRA
review.238F[239] The court should
consider misconduct relevant when it is gross and has affected the value or
extent of relationship property. However,
it should only be relevant to the
court’s determination when considering:
(a) whether there are extraordinary circumstances that make equal sharing
repugnant to justice;
(b) the partners’ contributions to the relationship;
(c) whether to make an occupation, tenancy or furniture order (see Chapter 9);
and
(d) what orders to make under the new Act to implement the division of
relationship property.
CHAPTER 5
Family provision claims
IN
THIS CHAPTER, WE CONSIDER:
- the law under
the Family Protection Act 1955 enabling family members to claim further
provision from an estate for their proper maintenance
and
support.
CURRENT LAW
- 5.1 A
family member of the deceased may consider that the provision available for them
under the deceased’s will or in an intestacy
is inadequate. In these
circumstances, the Family Protection Act 1955 (FPA) allows family members to
apply to the court for further
provision from the estate. The family member may
claim under the FPA in addition to any other claims they may have, including
under
the Property (Relationships) Act 1976 (PRA) or Law Reform (Testamentary
Promises) Act 1949 (TPA).
- 5.2 Family
protection legislation was first enacted in Aotearoa New Zealand as the
Testator’s Family Maintenance Act 1900. It
provided the court with power
to grant further provision from an estate to the deceased’s spouse or
children when the will
failed to make “adequate provision” for their
“proper maintenance and
support”.239F[240] The
Act’s central objective was to ensure some provision was made for the
spouse and children of a will-maker who, under the
law of the time, enjoyed
complete testamentary
freedom.240F[241] The main concern
was the economic vulnerability of women and minor children, although another
justification that emerged during Parliamentary
debate of the Bill was to
prevent the state from becoming liable to support the deceased’s wife and
children.241F[242]
- 5.3 Parliament
made several amendments to the legislation over the following years although the
wording of the test for recovery remained
the same. The Testator’s Family
Maintenance Act was renamed the Family Protection
Act.242F[243] The classes of
eligible claimants were extended to include illegitimate
children,243F[244] parents of the
deceased,244F[245] adopted
children245F[246] and
grandchildren.246F[247] The Act
was extended to apply to intestacies as well as cases where the deceased left a
will.247F[248]
- 5.4 Under the
current law, the family members eligible to claim under the FPA are the
deceased’s:248F[249]
(a) spouse or civil union partner;
(b) de facto partner who was living in a de facto relationship with the deceased
at the date of death;
(c) children regardless of their age or whether they were being maintained by
the deceased immediately before the death;
(d) grandchildren living at the date of
death;249F[250]
(e) stepchildren who were being maintained wholly or partly, or were legally
entitled to be maintained wholly or partly, by the deceased
immediately before
the death; and
(f) parents if they were being maintained wholly or partly, or were legally
entitled to be maintained wholly or partly, by the deceased
immediately before
the death or there is no living spouse, civil union partner, de facto partner or
child of the deceased’s
qualifying relationship.
- 5.5 Like the
earlier legislation, section 4 of the FPA empowers the court to grant further
provision from the estate if, under the
deceased’s will or in an
intestacy, adequate provision is not available for the family member’s
“proper maintenance
and
support”.250F[251]
- 5.6 Early cases
applied this provision narrowly. The courts saw the legislation as an extension
of the deceased’s maintenance
obligations during their lifetime which
focused on applicants’ material
needs.251F[252] In 1910, however,
te Kōti Pīra | Court of Appeal (the Court of Appeal) in Re
Allardice, Allardice v Allardice held the legislation should be interpreted
more broadly and introduced the concept of a “moral
duty”.252F[253] The Court
saw its role as determining whether the will-maker “has been guilty of a
manifest breach of that moral duty which
a just, but not a loving, husband or
father owes towards his wife or towards his
children”.253F[254] Over the
past 110 years, New Zealand courts have embedded the concept of moral duty in
their decisions. The test is now commonly
articulated as whether, objectively
considered, there has been a breach of a moral duty judged by the standards of a
wise and just
will-maker who is fully aware of all the relevant
circumstances.254F[255]
- 5.7 The
court’s assessment is therefore an ethical rather than economic
inquiry.255F[256] In Williams v
Aucutt, the Court of Appeal commented
that:256F[257]
- [W]e reject the
argument that the Court must expressly find a need for proper maintenance and
support. The test is whether adequate
provision has been made for the proper
maintenance and support of the claimant. “Support” is an additional
and wider
term than “maintenance”. In using the composite
expression, and requiring “proper” maintenance and support,
the
legislation recognises that a broader approach is required and the authorities
referred to establish that moral and ethical considerations
are to be taken into
account in determining the scope of the duty.
- 5.8 The courts
have established several principles to aid the court’s determination of
whether a breach of moral duty has
occurred.257F[258] These
principles include the following:
(a) The court should assess all the circumstances of the case, including
changing social
attitudes.258F[259]
(b) The size of the estate and other moral claims on the deceased’s estate
are relevant
considerations.259F[260]
(c) It is not sufficient merely to show unfairness. It must be shown in a broad
sense that the claimant has need of maintenance and
support.260F[261]
(d) Mere disparity in the treatment of beneficiaries is not sufficient to
establish a claim.261F[262]
(e) The court’s power does not extend to rewriting a will because of a
perception it is unfair.262F[263]
(f) Although the relationship of parent and child is important and carries with
it a moral obligation reflected in the FPA, it is
nevertheless an obligation
largely defined by the relationship that actually exists between parent and
child during their joint
lives.263F[264]
- 5.9 In
Williams v Aucutt, the claimant had no financial need and instead framed
her case as a “support” claim. The Court of Appeal confirmed that
adequate “support”, as a standalone concept, can require financial
provision from an estate as recognition of belonging
to the
family.264F[265] The Court added
that awards for “support” claims should be
modest.265F[266]
- 5.10 The courts
frequently state that an award under the FPA should disturb the deceased’s
will no more than is necessary to
repair the breach of moral
duty.266F[267] The Court of Appeal
in Fisher v Kirby explained also that awards should be neither unduly
generous nor ungenerous.267F[268]
Rather, the courts should exercise discretion in the particular circumstances of
a case, having regard to the factors identified
in the
authorities.268F[269]
- 5.11 The
majority of FPA claims reaching the courtroom today are made by the
deceased’s adult children, most of whom were not
dependent on their
deceased parent and may be financially
secure.269F[270]
- 5.12 Section
106(2) of Te Ture Whenua Maori Act 1993 (TTWMA) provides that no order can be
made under the FPA that has the effect
of alienating any beneficial interest in
Māori freehold land to any person other than the child or grandchild of the
deceased.
Te Kōti Matua | High Court (the High Court) does, however, have
powers to grant orders conferring the right to reside in any
dwelling or
affecting income derived from any beneficial interest in Māori freehold
land.270F[271]
- 5.13 Te Kooti
Whenua Māori | Māori Land Court (the Māori Land Court) has
jurisdiction to determine FPA claims that
relate to Māori freehold
land.271F[272] In addition, the
Māori Land Court may determine whether a whāngai is a child of their
“birth parents” or their
“new parents” for the purposes
of a FPA claim that relates to Māori freehold
land.272F[273] The tikanga of the
relevant iwi or hapū will determine the
matter.273F[274] Section 19 of the
Adoption Act 1955 does not
prevail.274F[275] The tikanga
applying to whāngai and succession is discussed more broadly
below.
NGā TIKANGA
The importance of whānau
- 5.14 Whānau
occupies a central place in te ao Māori. Williams J, in extrajudicial
writing, has said that “[w]ithout
whānau, being Māori is a mere
abstraction.”275F[276] Being
part of a whānau involves rights and obligations that are sourced from
whakapapa, whanaungatanga, manaakitanga and
aroha.276F[277] These obligations
can include financial and moral support as well as an obligation to take
responsibility for each other’s
actions.277F[278] The whānau
is also crucial for discussing and settling familial issues relating to child
rearing and succession.278F[279]
Professor Patu Hohepa has said that “[a]ll members must ideally share
compassion (aroha), trust (pono), truthfulness (tika)
with each
other”.279F[280] The
whānau also acts as a first line of defence when there is trouble with an
individual or group within a wider
whānau.280F[281]
- 5.15 Williams J
has also described the whānau and the rights and obligations of its
members:281F[282]
- Traditionally
the whanau ... was the centre of Māori life. It was the primary unit of
close identity and belonging, the primary
unit of social rights and obligations
and, at a practical level at least, the primary unit of economic rights and
obligations.
- 5.16 Whānau
Māori and non-Māori notions of family share some common values. When
both are fully functional, the connections
one shares with one’s whanaunga
(relatives) matter to the individual and to the collective. An estranged family
member hurts
the individual, the family and the whānau. When a family or
whānau member is in trouble, the whānau and family may
rally around
them to provide support. Compassion, trust and honesty are valued amongst family
members and whānau.282F[283]
Similarly, individuals are responsible to the whānau to ensure that their
actions are consistent with tikanga. As demonstrated
by the saying “ki te
hē tētahi, kua hē te
katoa”283F[284], the actions
of an individual member can impact on and reflect on others in a family or
whānau. In some cases, a family or whānau
may bear responsibility for
the actions of a member.
- 5.17 One of the
primary obligations of the whānau as a whole is to the welfare of tamariki
and mokopuna.284F[285] Some of the
primary tikanga that apply to pouaru (the surviving partner) include
whanaungatanga, aroha and manaakitanga. In many
cases these tikanga would ensure
that a surviving partner and any children of the relationship are cared for by
whānau.
- 5.18 As
discussed in Chapter 4, Professor Jacinta Ruru articulates two distinct views on
defining whānau
membership.285F[286] The first is
a “descent-based” view, and the second is an extended view whereby
those who participate in whānau
activities are included. The descent view
may take precedence over the extended view when considering legal claims to
further provision
from a deceased partner’s
estate.286F[287] However, the
views of those with direct whakapapa to the deceased are constrained by the
exercise of tikanga, which would require
broader consideration of perspectives
in relation to appropriate provision for surviving partners. These might include
consideration
of:
(a) the nature and duration of the relationship between the pouaru and the
deceased;
(b) whether there are children of the relationship;
(c) the level and nature of involvement or association of the pouaru with the
broader whānau; and
(d) the mana of the deceased (a well-respected rangatira’s wishes may be
less likely to be challenged).
Whāngai
- 5.19 Whāngai
is a Māori practice where a child is raised by someone other than their
birth parents, usually another
relative.287F[288] Rather than
being a way of dealing with children who lack parents, the concept and practice
of whāngai is firmly rooted in
whanaungatanga.288F[289] One
function of whāngai traditionally is encapsulated in the saying “kia
mau ki te ara whanaunga”, to hold firm
the various strands of whānau
relationships so they remain strong.
- 5.20 The term
“whāngai” is often associated with the Pākehā
tradition of adoption. However, whāngai
does not have the same features or
consequences as an adoption under state
law.289F[290] If a
Pākehā equivalent must be sought, the idea of guardianship is closer
to whāngai than adoption but is not an
equivalent.290F[291]
Whāngai:291F[292]
- ... is a
technique for cementing ties among members of whanau and hapu located at
different points in the whanaungatanga net, and
for ensuring the maintenance of
tradition between generations; the latter, by placing young children with elders
to be educated and
raised in Māori tradition. Thus to be a whangai in
tikanga Māori is not to be abandoned — quite the opposite. It
is to
be especially selected as someone deserving of the honour. Stranger adoption was
completely unheard of and would be considered
abhorrent in a system that valued
kinship above all else. A form of banishment.
- 5.21 The origins
of whāngai are found in an account of
Māui-tikitiki-a-Taranga.292F[293]
Taranga, Māui’s mother, miscarried Māui, her youngest child.
Believing him to be stillborn, she cut off her topknot,
wrapped him in it and
cast him into the sea. Māui became entangled in seaweed and as a result
remained afloat until he was washed
ashore and found by his grandparent,
Tama-nui-ki-te-rangi, who then raised him. Later, Māui returned to his
biological parents
and identified himself by reciting his whakapapa to his
family, who then welcomed and accepted him and continued to raise and nurture
him.
- 5.22 The nature
of whāngai arrangements and the rights of whāngai to succeed according
to tikanga relating to succession
by whāngai varies amongst whānau,
hapū and
iwi.293F[294]
Tikanga Māori under the Family Protection Act
1955
- 5.23 The
extent to which tikanga should affect the concept of moral duty under the FPA
has been described as “a matter of some
difficulty”.294F[295]
- 5.24 In Re
Stubbing, the deceased had left her son significant land interests but made
very little provision for her other
child.295F[296] The son who
received the land argued that, based on “Māori custom”, no
breach of moral duty had occurred. The High
Court held it had insufficient
evidence of the custom by which the son said the farm should pass to him. The
Court added that, where
a claimant has made out a case for relief, it cannot be
overridden by competing claims based on custom.
- 5.25 Some cases
have treated tikanga Māori as only an expression of the deceased’s
personal values and testamentary
freedom.296F[297] In Koroheke v
Te Whau, the High Court noted that, while a Māori
will-maker’s personal value system was relevant, it should not be given
priority
over their moral duty to make provision to their
family.297F[298] In that case, the
will-maker wished to ensure land went to one of her children without needing to
be sold because of its whānau
importance. The Court noted the decision in
Re Ham in which the Court of Appeal said the court must pay regard to the
strong attachment of Māori to the
land.298F[299] However, the Court
reasoned the land in question had not been held by the family for long. The
desire to retain the land for its
whānau importance should not be given
precedence over ensuring the will-maker discharged her moral duty to her other
children.299F[300]
- 5.26 In van
Selm v van Selm the deceased had given one of her three children a farm in
her will.300F[301] The other two
children claimed further provision from the estate which would have required the
farm to be sold. The child that inherited
the farm argued that the case should
be determined on tikanga Māori rather than current social attitudes. In
particular, he
argued that the Court should respect the deceased’s wishes
that the farm should stay in the whānau. Te Kōti Whānau
| Family
Court held that the three children did not operate as a whānau and the land
was not in fact the papa kāinga for
any of the children. The Court ordered
that the farm vest equally in the children. On appeal, the High Court altered
the children’s
shares but did not refer to
tikanga.301F[302]
- 5.27 The courts
have also considered the position of whāngai in FPA cases. In Keelan v
Peach the Court of Appeal held that a whāngai who had not been formally
adopted was not eligible to claim under the
FPA.302F[303] The Court based its
decision on section 19 of the Adoption Act which provides an adoption in
accordance with Māori custom is
of no force or effect. In Re Green
(dec’d); Green v Robson, the High Court significantly altered the
deceased’s will in which she left the bulk of the estate, mostly interests
in Māori
freehold land, to “foster
children”.303F[304] The
Court commented on the lack of the evidence about the deceased’s reasons
for the dispositions in the will. The Court held
that the deceased’s only
“natural” son’s claim “clearly outweighed” the
interests of the foster
children.304F[305] The Court
ordered that the whole estate go to the son to remedy the breach of moral duty.
ISSUES
- 5.28 In
the Issues Paper, we noted several potential issues with the FPA. First, the
court’s emphasis on remedying the deceased’s
breach of “moral
duty” may obscure the Act’s policy objective. In any situation,
there can be a wide variety of
views about what is a moral way to distribute an
estate. The assessment is likely to be more contestable as New Zealand society
becomes
more culturally diverse and there are differences in family forms,
wealth and social
perspective.305F[306] Case
analysis shows variation both in the reasons for determining a breach of moral
duty and for quantifying
awards.306F[307] The FPA has been
criticised for enabling a judge to substitute their determination of what is
moral or fair in the place of the will-maker’s
determination.307F[308]
- 5.29 The lack of
clarity has practical consequences. Predicting case outcomes is sometimes
difficult for will-makers, potential claimants
and lawyers advising these
parties. The uncertainty may discourage claimants and personal representatives
from settling out of court.
- 5.30 Second, we
suggested that the ability of adult children to seek further provision from an
estate under the FPA could be inconsistent
with public attitudes and values. As
noted, most litigation under the FPA concerns claims brought by adult children
of the deceased.
Awards to adult children who do not have financial need have
caused concerns.308F[309] The
results of the Succession Survey show high numbers of respondents (80 per cent)
agreed that a person should be allowed to exclude
family members from their
will.309F[310] However, when
presented with different family scenarios, respondents were more likely than not
to agree that adult children of the
deceased should be allowed to challenge a
will and get a share of an estate. We concluded that the Succession Survey
findings suggest
that testamentary freedom is important to most New Zealanders,
but there is general support for some limits on this freedom to ensure
certain
family members are provided for. We discuss the results of the Succession Survey
further below.
- 5.31 Third, we
had heard from lawyers that, while a claimant may feel vindicated by an award,
FPA claims can severely damage relationships
between family members. Prolonged
disputes add to the time and costs of administration, negatively affecting
beneficiaries of the
estate who are often also family members. There are also
questions as to how the hurt caused by a parent’s failure to recognise
a
child in their will can be remedied by a judge’s decision to award
provision from an
estate.310F[311]
- 5.32 Lastly,
we noted the possible ways tikanga might align or conflict with the policy of
the FPA. We noted too how whāngai
are not an eligible class of claimants
under the FPA. We asked what tikanga has to say about the rights of whānau
members to
challenge a deceased’s testamentary wishes.
RESULTS OF CONSULTATION
- 5.33 We
received many submissions on the consultation website and Issues Paper
addressing the issues and our proposals for reform
regarding family provision.
There was a diverse range of views among submitters.
Issues
- 5.34 Several
submitters, including Public Trust, MinterEllisonRuddWatts, Chapman Tripp and
McWilliam Rennie, expressed broad agreement
with the issues we identified in the
Issues Paper.
- 5.35 Some
emphasised the need for the law to provide greater certainty. TGT Legal
explained that the cases are fact specific and require
judges to exercise a high
level of discretion, meaning the outcome of the case will depend on the views of
the presiding judge. The
unpredictability and variability in the application of
the FPA make it difficult to advise clients on the risks and benefits of a
claim. Perpetual Guardian emphasised that the quantum of awards varies
significantly.
- 5.36 Around one
in five submitters commented that the law should provide less incursion into
testamentary freedom. Several submitters
said they had carefully considered
their testamentary wishes and they were concerned that a court could interfere.
Some submitters
explained that will-makers will have good and thought-out
reasons for favouring a beneficiary or omitting another. Allowing a court
to
adjust those terms rested on a paternalistic assumption that the will-maker had
acted inappropriately and that a judge knows better.
- 5.37 Several
submitters, including Public Trust, Te Kāhui Ture o Aotearoa | New Zealand
Law Society (NZLS), TGT Legal, McWilliam
Rennie and Chris Kelly, submitted that
framing the legal test for provision in the language of “moral duty”
is problematic.
They noted that what constitutes morality, especially in the
context of a very diverse society, is a subjective and contentious
question.
- 5.38 Several
submitters noted the particular problem that can arise in relation to
stepfamilies. A deceased will often provide the
bulk of an estate to their
partner with the expectation the partner will provide in their will for the
deceased’s children
from a prior relationship. If the partner later
changes their mind, the children from the first relationship have limited rights
to seek provision from the estate of their stepparent.
- 5.39 Some
submitters strongly disagreed with our analysis of the issues in the Issues
Paper. Submitters, including the Family Law
Committee of Auckland District Law
Society (ADLS), NZLS, the Rt Hon Sir Peter Blanchard and Jan McCartney QC, saw
the FPA as generally
satisfactory. They said the suggestion that the law creates
uncertainty is exaggerated. Rather, judges make decisions that are fair
and
equitable, and the fact that most cases settle indicates the relevant legal
principles are well understood. These submitters
also disagreed with our
conclusion that the Succession Survey shows high support for testamentary
freedom. Rather, they commented,
the Succession Survey confirms that most people
agree family members should be able to claim against an estate.
Options for reform
- 5.40 In
the Issues Paper and consultation website, we proposed several options for
reform. All options involved repeal of the FPA
and a replacement “family
provision” regime being available in the new Act. We presented four
options for who should
be eligible for family provision and in what
circumstances:
(a) Option One: Family provision awards for partners.
(b) Option Two: Family provision awards for children under a prescribed age.
(c) Option Three: Family provision awards for disabled children.
(d) Option Four: Recognition awards for children.
- 5.41 As
discussed in the Issues Paper, we preferred the first two options, but not the
third and fourth.
Option One: Family provision awards for partners
- 5.42 We
proposed that a surviving partner should be eligible to make a family provision
claim. The court should grant an award when
the surviving partner has
insufficient resources to enable them to maintain a reasonable, independent
standard of living, having
regard to the economic consequences for that partner
of the relationship or its end. The provision the court grants from the estate
should be to enable the partner to transition from the family joint
venture.
- 5.43 This option
received strong support from submitters. Some, however, were concerned that what
provision would be needed to ensure
a “reasonable, independent standard of
living” could be difficult to determine. It is inherently fact specific
and may
need to take into account other sources of income available to the
partner, such as provision from a trust.
- 5.44 NZLS noted
the possibility that a family provision claim will enable a surviving partner to
access property of the deceased that
would otherwise have been protected under
the PRA as separate property. It noted that the Commission’s
recommendations to reform
the PRA would result in there being less relationship
property for some relationships, particularly those that start later in the
partners’ lives. NZLS recommended there should be additional factors the
court takes into account to protect separate property
and respect the
deceased’s plans to provide for other parties.
- 5.45 Public
Trust and TGT Legal were the only submitters to address our proposal regarding
partners who separate prior to death. They
agreed that partners who separated
two years or longer prior to the death of the deceased should be ineligible to
claim.
Option Two: Family provision awards for children under a
prescribed age
- 5.46 We
proposed that the deceased’s children who are younger than a prescribed
age should be eligible to make a family provision
claim from the estate when
they would receive inadequate provision under the deceased’s will or in an
intestacy. The court
should have discretion to grant an award from the
deceased’s estate to enable the children to be maintained to a reasonable
standard and, so far as is practical, educated and assisted towards attainment
of economic independence. We suggested three options
for the prescribed age: 18,
20 or 25 years.
- 5.47 Submitters
generally agreed it was important to ensure young children are properly provided
for on a parent’s death. Around
half the submitters who commented on the
prescribed age favoured 25 years, with most noting that a young person’s
need for
parental support will usually extend to this age. Around 25 per cent of
submitters favoured 18 years, and around 25 per cent favoured
20 years.
- 5.48 We proposed
that “accepted children” should be eligible to claim family
provision. An accepted child would be a child
for whom the deceased had assumed,
in an enduring way, the responsibilities of a parent. Again, submitters
generally supported this
proposal. Several submitters noted, however, that the
quality and nature of the relationship must be carefully examined. A minority
of
submitters, particularly among website submitters, were concerned at the
proposal. They observed that a person wishing to provide
for children in a
parental capacity can do so in their will. They also noted the complexities that
may arise if a child had multiple
stepparents and biological parents.
- 5.49 TGT Legal
agreed with our proposal that, if posthumous reproduction is made permissible in
the future, a posthumously conceived
child should be eligible for family
provision under the new Act provided the unborn child was in utero prior to the
expiry of the
limitation period. Public Trust also agreed such children should
be eligible and noted that eligibility might be qualified by a requirement
that
the deceased consented to the pregnancy.
Option Three: Family provision awards for disabled
children
- 5.50 Our
third option for reform was to provide that disabled children of any age may
claim family provision. An award would recognise
that a child in this category
who does not have sufficient resources to enable them to maintain a reasonable
standard of living should
receive provision from the estate.
- 5.51 Submitters
strongly favoured this option. Some submitters cautioned that it would be
difficult to define disability. Nan Jensen,
a practitioner specialising in
disability law, noted that disabled people who do not receive resources from
family will have a limited
standard of living due to limited work opportunities.
Relying on labour market statistics from Tatauranga Aotearoa | Stats NZ,
Manaakitia
a Tātou Tamariki | Office of the Children’s Commissioner
similarly emphasised the discrepancy seen in official statistics
between the
average incomes for disabled people and non-disabled
people.311F[312] Jensen noted too
that any provision a disabled person receives from an estate may impact on their
asset or means-tested social security
benefits. If benefits are negatively
affected, there are issues about what is required for a reasonable standard of
living.
Option Four: Recognition awards for children of all
ages
- 5.52 Submissions
on our proposals for reform in relation to adult children of a deceased showed a
division of opinion between submitters.
We proposed an option to allow children
of the deceased, regardless of their age or needs, to make a claim for a
“recognition
award” to recognise the importance of the parent-child
relationship and to acknowledge that the child belongs to the family.
We
explained in the Issues Paper that we did not prefer this option.
- 5.53 Several
submissions on the consultation website supported this option. However, around
double the number of submissions opposed
adult children having any rights to
seek further provision from an estate. Many submitters thought there is no
requirement to provide
for an adult child and will-makers’ decisions
should be respected. They suggested that the will-maker is the best person to
decide how their relationship with their child should be recognised, not the
courts. Some submitters were concerned that claims have
a negative impact on
families. A small number of submitters shared personal stories of how they were
required to defend their own
provision from a deceased’s estate against
what they viewed as unmerited claims from adult children. They described the
significant
financial and emotional burden they experienced.
- 5.54 Three law
firms who submitted on the Issues Paper, Morris Legal, TGT Legal and Chapman
Tripp, did not agree adult children should
be able to claim recognition awards.
Both Chapman Tripp and TGT Legal explained that a court making a financial award
to a child
is not a substitute for the parent providing emotional recognition.
They said it is hard to imagine how protracted litigation, with
very personal
details and unpleasant family history being dredged up, could ever redress such
grievances and ameliorate such a situation
even when it results in a financial
award. Professor Emeritus David Williams noted the mischief the original
legislation had in mind
at the turn of the previous century bears no resemblance
with the situation today. Currently, he observed, “children”
in
their 60s can claim a “moral duty” for a parent in their 80s to
provide for them and thus undermine a will-maker’s
desire to gift to a
charity or other cause of their own choosing.
- 5.55 Public
Trust, while saying it did not have a strong view on the proposed recognition
awards, noted that continuing to make moral
claims available will also continue
the uncertainty associated with these claims.
- 5.56 On the
other hand, many submitters were very concerned at the proposal to remove adult
children’s rights to claim. These
submitters included Perpetual Guardian,
NZLS, ADLS and several other leading family law and succession practitioners.
Submitters
gave varying reasons in support, but several points were repeatedly
raised.
- 5.57 First, most
of these submitters argued that it is an important matter of fairness and equity
that parents provide for children
of all ages when they die. Society generally
expects parents to do what they can to support a child’s psychological and
physical
security through all stages of the child’s life.
- 5.58 Second,
submitters explained that often will-makers will make
“inappropriate” wills. Some noted that parents can
be cruel or
unfair in the terms of their wills. Some raised gender-based bias. Others noted
that ageing people can be more susceptible
to influence to change their wills,
or they can develop irrational prejudices. It is necessary, the submitters
argued, that the court
retains power to remedy these instances of unfairness.
- 5.59 Third, some
submitters argued that the courts should adjust wills to respond to a
parent’s misconduct towards their children.
The death may have closed the
door on any opportunity for the parent to make amends, but the court can help
victims by redressing
abuse or neglect.
- 5.60 Fourth,
submitters pointed to will-makers’ responsibilities to provide for the
financial needs of adult children. Intergenerational
transfers of wealth are
especially necessary, they said, because of the rising costs of living,
particularly housing.
- 5.61 Lastly,
some submitters noted that eliminating FPA claims for adult children would not
result in less litigation. Rather, aggrieved
children would be likely to seek
provision through some other claim, such as challenging testamentary capacity or
relying on the
contribution claim we proposed in the Issues Paper.
- 5.62 Submitters
who favoured retaining adult children claims were divided on what the nature of
the claim should be:
(a) McCartney submitted the current test of “moral duty” works
sufficiently. It has the benefit of responding to the
economic needs of families
in contemporary Aotearoa New Zealand.
(b) Bill Patterson favoured rewriting the legislation to state in more precise
language the concept of “need” as it has
been developed in its wider
sense in the case law.
(c) Kelly suggested more guidance in the legislation to focus on cases of
genuine need or injustice.
(d) NZLS and Stephen McCarthy QC suggested reframing adult child claims into two
categories based on economic or financial need in
one category and family
recognition in a second category. They said this would make the claims clearer
and reduce the scope for the
sort of derogatory evidence that often appears in
family protection cases.
(e) TGT Legal submitted that there should be just one category of case for
exceptional circumstances in which the court should have
discretion to alleviate
the financial need of an adult child where failure to do so would cause serious
injustice or some other high
threshold.
(f) Vicki Ammundsen proposed the legislation provide a specified percentage
award for adult children, depending on family construct,
if the children wished
to apply. For example, where there are up to three children, each should be
entitled as of right to a claim
of 15 per cent of the estate, but where there
are four or more children, 50 per cent of the estate should be divided by the
number
of eligible children.
Other comments
- 5.63 We
received submissions both favouring and opposing our proposal that parents cease
to be eligible claimants.
- 5.64 NZLS
submitted that the position of grandchildren should be expressly clarified in
the legislation rather than rely on our proposed
category of “accepted
children”. It is not unusual, NZLS explained, for grandchildren to be
cared for by grandparents
as their primary care providers. Alternatively, a
grandchild’s parents may have predeceased the grandparent. In such
circumstances,
NZLS submitted the legislation should provide that a minor or
disabled grandchild should have the ability to claim for a family provision
or
recognition award.
Ngā tikanga
- 5.65 Several
submissions addressed the questions we raised in Chapter 8 of the Issues Paper
regarding whānau members’ rights
to challenge a deceased’s
testamentary wishes and tikanga perspectives on the options for reform we raised
in Chapter 4.
- 5.66 Te Hunga
Rōia Māori o Aotearoa (THRMOA) and Ngā Rangahautira submitted
that testamentary freedom is consistent
with tikanga. It is intensely tied to
mana and whanaungatanga. However, both submitters cautioned that it must be
balanced against
tikanga obligations relating to collective rights arising from
whakapapa and whānau. Chapman Tripp submitted that testamentary
freedom as
an overriding principle would not sit comfortably with tikanga Māori as it
must be balanced with expectations derived
through whakapapa under the practice
of whanaungatanga.
- 5.67 THRMOA
stressed that, where challenges are made to a person’s testamentary
wishes, it is important for the dispute to be
determined in accordance with
tikanga. Discussion among whānau would be expected. Chapman Tripp submitted
that a challenge would
require kōrero among interested whānau members,
and whānau members would have every right to speak their mind. There
would
need to be an eventual agreement between the whānau involved to resolve the
dispute. THRMOA added that, where whānau
members are undertaking a
challenge separate to other whānau members, they would need a sufficiently
persuasive case. Likewise,
Chapman Tripp noted that whanaungatanga does not
require everyone agreeing with each other all the time.
- 5.68 Tamati
Cairns (in an interview with Tai Ahu) stressed that, under tikanga, a
will-maker’s decisions should not be immune
from challenge, but the
tikanga underpinning that decision need to be explored and given appropriate
weight. The process for the
challenge needs to be in accordance with tikanga.
- 5.69 In
responding to whether our proposals for reform in the Issues Paper were
consistent with tikanga, THRMOA noted that presumptions
and a prescribed default
set of rules do not accord well with tikanga. While the proposed options may be
consistent with tikanga,
a tikanga approach must flourish and evolve on its own
terms without reference to specific rules or options.
- 5.70 THRMOA was
confident that tikanga could address the options proposed. Whanaungatanga and
whakapapa are relevant to all whānau
members’ rights to succeed,
while the concepts of manaaki, kaitiaki and aroha are specifically relevant
towards surviving partners,
younger children and disabled children. The concept
of utu may be relevant towards adult children. Te Kani Williams agreed that the
concepts of whanaungatanga, manaakitanga and aroha could inform rights to seek
provision from a relative’s estate.
- 5.71 Chapman
Tripp noted the position that separated partners ought to be able to claim
family provision is not inconsistent with
tikanga. Specific factors ought also
to be taken into account, such as whether there are children from the
relationship and the relevant
contributions giving rise to utu.
- 5.72 ADLS did
not believe the proposals relating to surviving partners’ rights to claim
family provision were consistent with
tikanga. ADLS considered that whakapapa
should be prioritised over surviving partners.
- 5.73 Chapman
Tripp said an age limit for a family provision claim for children may not
necessarily clash with tikanga. However, it
may not pay sufficient attention to
the wider and unique circumstances of each case. Also, thought should be given
to mokopuna obligations
because the mokopuna-tupuna relationship in tikanga
Māori is very important (and was usually the framework within which
whāngai
was traditionally practised). This may also be a specific factor to
take into account.
- 5.74 Submitters
generally agreed that the proposal for “accepted children” to be
eligible claimants was consistent with
tikanga in respect of whāngai.
Whāngai ought to be included and provided for to some extent by the
deceased’s estate
in accordance with whanaungatanga. Tamati Cairns (in an
interview with Tai Ahu) stressed that individuals become whāngai for
strategic or aspirational reasons. Where a deceased had made a decision to
dispose assets to a whāngai, any challenge to that
decision needs to be
brought in accordance with tikanga. The broader tikanga reasoning should be
explored and given appropriate weight.
CONCLUSIONS
- 5.75 What
provision family members of a deceased person should receive from the estate by
law is a difficult question because the
answer is predominantly a value
judgement. In a Pākehā context, the answer generally depends on
personal philosophies towards
inherently subjective matters. Moses and Peart
summarise the types of considerations that are engaged as
including:312F[313]
- ... individual
rights and freedoms, self-responsibility and collective responsibility, equity,
the meaning of family, recognising
the different roles and values within private
relationships, the courts’ place in regulating private lives and
arrangements,
and other very profound issues that go to the heart of the kind of
society we want to have.
- 5.76 The
attitude an individual takes to the policy of the FPA may also depend heavily on
personal experience. We received submissions
from people who described how they
defended their inheritance from what they saw as unmeritorious claims from other
family members.
These submitters advocated for the removal of rights to claim
against an estate. Conversely, we received submissions from children
of a
deceased who were aggrieved by what they saw as the deceased’s neglect or
prejudice towards them. These submitters felt
very strongly that they should be
able to claim against the estate. We heard from those who have made wills who
were concerned that
their testamentary wishes would be overridden.
- 5.77 In te ao
Māori, submitters were clear that the tikanga of challenging the
deceased’s testamentary wishes would require
a process through which
whānau members would
kōrero.313F[314] The
discussion would encourage a mutually agreed and balanced outcome while
observing the mana and whanaungatanga relating to the
deceased’s
testamentary wishes. Consequently, provision from an estate in te ao Māori
is less about personal views and
philosophies and more about the whānau
applying tikanga values and processes to reach the appropriate
outcome.
The FPA should be repealed
RECOMMENDATION
R18
The
Family Protection Act 1955 should be repealed. In its place, the new Act should
provide that certain family members of the deceased
may claim family provision
awards.
- 5.78 We conclude
that the FPA requires reform and should be repealed for the following
reasons.
The FPA does not clearly set out the basis for a claim
- 5.79 The
Legislation Guidelines provide that the underlying policy objective of an
Act should be discernible in legislation
itself.314F[315] Further, the
Legislation Guidelines provide that legislation must be accessible
because:315F[316]
- [i]f citizens
cannot find the legislation that applies to them or if that legislation cannot
be understood, then both the efficacy
of the legislation and the rule of law
itself are undermined. If legislation is vague about the obligations it imposes
or leaves
too much to people’s discretion, it will create confusion and
inconsistency.
- 5.80 In our
view, the FPA does not sufficiently express a policy objective nor the
principles on which the courts should rely when
making decisions. Indeed, the
authors of Burrows and Carter Statute Law in New Zealand cite the FPA as
a leading example of legislation giving the court discretion to “order
virtually anything it
likes”.316F[317] The authors
comment that the courts have established their own principles to guide the
exercise of the
discretion.317F[318] Rather than
look to the legislation as the primary source of their rights and obligations,
will-makers and those engaged in estate
disputes must instead refer to the case
law which is less accessible. The better approach would be for the legislation
to clearly
state the objectives and principles against which the court will make
decisions.
- 5.81 Many of the
submitters who favoured retaining broad rights for adult children said the test
in the FPA requires
redrafting.318F[319] They said the
statutory wording should set out the basis of a claim more precisely.
The moral duty test is unsatisfactory
- 5.82 In
our view, it is unsatisfactory to have a legal test expressed as a “moral
duty” in this area of law. This is the
second time the Commission has
reviewed the FPA and reached this
conclusion.319F[320]
- 5.83 There are
likely to be extreme cases where society will generally agree that a will-maker
can be described as having acted immorally
or unethically based on the terms of
their will. However, as we note above, people’s views will reflect
personal value judgements,
which must be applied in the unique factual
circumstances of a particular family. Consequently, in most cases, reasonable
minds will
differ as to the “moral” way of distributing a
deceased’s estate. Aotearoa New Zealand’s increasing cultural
diversity and the need to enable Māori perspectives no doubt add to the
differences of opinion. We do not think it is possible
to adopt the standpoint
of a notional wise and just will-maker and arrive at an objectively discernible
moral duty.
- 5.84 That is not
to say, as a matter of legal design, that the court should have no discretion.
Our recommendations for reform set
out below contain considerable discretionary
elements. Rather, because we consider a moral duty in this context is incapable
of objective
assessment, the courts currently exercise discretion in pursuit of
an illusory goal.
- 5.85 We have
paid attention to the views of submitters who called strongly for the retention
of the moral duty test. We have considered
the underlying policy objectives they
say the court should pursue when assessing moral duty. Taking into account the
range of opinions
communicated to us, we remain convinced it is inadvisable to
couch the law in terms of an objective moral duty when the nature of
that duty
is so subjective and contestable.
- 5.86 The better
approach, in our view, is for legislation to express more precisely the grounds
on which it is permissible to alter
the terms of a will.
Tikanga Māori has been inadequately recognised
- 5.87 The
courts have been reluctant to accept arguments that tikanga Māori should
determine the scope of a deceased’s moral
duty. As noted above, the courts
have instead preferred to treat tikanga as only relevant insofar as it is an
expression of the deceased’s
personal values and testamentary
freedom.320F[321] Further, in
Re Stubbing, the High Court commented that a case for relief
cannot be overridden by competing claims based on
custom.321F[322]
- 5.88 Based on
these judgments, we consider tikanga Māori is insufficiently woven into the
law. For whānau Māori, we
consider tikanga Māori should influence
the scope of the obligations owed by a deceased to their whānau and what
provision
a court should grant to family members from a deceased’s estate
in appropriate cases. Not only do the judgments demonstrate
how a
deceased’s moral duty is predominantly analysed by the courts in
Pākehā terms, in our view, the judgments do
not give proper attention
to the constitutional significance of tikanga, as discussed in Chapter 2. There
is, therefore, a strong
case for rewriting the legislation into which tikanga
can be expressly woven to signify its relevance when the court assesses family
provision claims.
The new Act should provide for family provision
awards
- 5.89 In
place of the FPA, we recommend that the new Act should allow certain family
members of the deceased to apply to the court
for a family provision award. We
discuss which family members should be eligible to claim family provision below,
and the basis on
which the court would determine an application.
- 5.90 Family
provision under the new Act should take the approach of the current law in
providing that the terms of the deceased’s
will or the terms of the
intestacy regime prevail until a court decides otherwise. Further, as discussed
below, we recommend that
the quantum of a family provision award should be at
the discretion of the court, albeit based on the statutory tests we outline.
- 5.91 We have
considered but have not recommended a “forced heirship”
approach.322F[323] Broadly, that
would have required a deceased’s estate to be distributed to certain
family members based on fixed shares prescribed
by law notwithstanding the
deceased’s wishes. We do not think a forced heirship regime would be
appropriate for Aotearoa New
Zealand for two key reasons. First, it would
represent a significant change away from the greater testamentary freedom under
the
law of Aotearoa New Zealand. We do not think such a change would receive
adequate support in principle or for any particular prescription
of shares.
Second, in our review of other jurisdictions, forced heirship regimes are seldom
absolute. Rather, they allow family members
to be disqualified on certain
grounds, usually relating to some form of unacceptable behaviour such as
criminal conduct, exercising
duress over the deceased or causing a breakdown in
relations with the
deceased.323F[324] We therefore
anticipate that any certainty a forced heirship regime may be thought to deliver
may be undermined by exceptions and
the resulting disputes that would inevitably
occur around disqualification.
Family provision awards for partners
RECOMMENDATIONS
R19
A court should make a family provision award to a surviving partner where,
taking into account the provision available from the deceased
on the
deceased’s death, a surviving partner has insufficient resources to
maintain a reasonable, independent standard of living,
having regard to the
economic disadvantages arising from the relationship for that partner.
R20
A partner should have been in a qualifying relationship as defined in
recommendations R11–R15 to be eligible to claim family
provision.
R21
In determining the amount of a family provision award to a surviving partner,
the court should take into account:
- the
extent of the economic disadvantages the partner suffers from the relationship;
- the
duration of the relationship;
- the
partner’s responsibilities for any children of the deceased;
- the
partner’s current and likely future employment situation; and
- the
tikanga of the relevant whānau.
R22
In determining the amount of a family provision award to a partner, the court
should have discretion whether to take into account
any means-tested social
security assistance a surviving partner receives.
- 5.92 We
recommend that surviving partners are eligible to claim family provision awards
from a deceased partner’s estate in
place of rights to claim under the
FPA.324F[325]
- 5.93 In
relationships ending on death, the surviving partner may have suffered and
continue to suffer economic disadvantages from
the relationship. A common
example is where the surviving partner has forgone full participation in the
workforce to care for the
couple’s children. The deceased partner, while
alive, was free to work. Both partners will have benefited from the arrangement,
which can be understood as a family joint
venture.325F[326] However, the
surviving partner’s expectations of continued provision through the family
joint venture may be defeated on the
deceased’s death through no or
inadequate provision. In these circumstances, it is appropriate for the
surviving partner to
receive provision from the estate to enable them to
maintain a reasonable, independent standard of living.
- 5.94 For
relationships ending on separation, the PRA provides that a just division of
relationship property has regard to the economic
advantages or disadvantages for
the partners arising from the
relationship.326F[327] In the PRA
review we affirmed that there were compelling policy reasons to share economic
advantages and disadvantages when a relationship
ends by separation and proposed
a regime of Family Income Sharing Arrangements
(FISAs).327F[328] However, for the
reasons given below, we do not think it best to address the economic
consequences of a relationship that ends on
death through awards from
relationship property or FISAs. Rather, we think it better the court continue to
have discretionary powers
to respond to a surviving partner’s needs when
they are a result of the economic consequences of that relationship.
- 5.95 We
therefore recommend that a surviving partner should be eligible to make a family
provision claim. The court should grant an
award when, taking into account the
provision the deceased has made for the surviving partner on the
deceased’s death,328F[329]
the surviving partner has insufficient resources to enable them to maintain a
reasonable, independent standard of living, having
regard to the economic
consequences for that partner of the relationship. The award the court grants
from the estate should enable
the partner to transition from the family joint
venture, noting that some partners, particularly those of older age, may never
be
financially independent from the estate.
- 5.96 Our
recommendations take a different approach to the law governing partners’
claims under the FPA. Under the FPA, the courts
have traditionally taken the
view that the deceased’s duty towards their surviving spouse is
paramount.329F[330] They have held
that a deceased’s moral duty is to provide a surviving partner with an
allowance that will allow them to live
without financial anxiety to a standard
they enjoyed during the deceased’s lifetime, particularly in cases of
larger estates.330F[331] However,
the courts have taken a different approach in cases where the surviving partner
was from the deceased’s only relationship
during their life, compared to
where the surviving partner is of a second or subsequent
relationship.331F[332] In
particular, the courts may give greater consideration to competition with the
deceased’s children from a prior
relationship332F[333] or if the
subsequent relationship has been of relatively short
duration.333F[334] Ultimately, the
courts have stressed that the extent of the deceased’s moral duty to a
partner from a subsequent relationship
will depend on the circumstances of the
case.334F[335]
- 5.97 The
reframed family provision award we recommend focuses instead on the needs of the
surviving partner, having regard to how
their participation in the family joint
venture with the deceased has impacted them financially. We consider this
inquiry is more
objectively ascertainable than what a deceased’s moral
duty might be in the circumstances of any given case, particularly as
more New
Zealanders now enter second or subsequent relationships. We also consider the
recommendation aligns better with our conclusions
in the PRA review about how
the law should address the economic consequences of a relationship for each
partner on separation.
- 5.98 An
assessment of sufficient resources should take into account any relationship
property to which that partner is entitled. When
a surviving partner’s
entitlement under the will or on intestacy is less than their share of
relationship property, the partner
should first apply to divide their
relationship property before seeking a family provision award.
- 5.99 We believe
the objective of ensuring a surviving partner receives the provision they need
to maintain a reasonable, independent
standard of living is a concern that
tikanga would recognise and respond to. We understand the values of
whanaungatanga, aroha and
manaakitanga would ensure that a surviving partner of
the relationship is cared for both financially and emotionally.
- 5.100 The
specific provision a surviving partner should receive from the estate in the
context of a Māori whānau should,
however, be informed by tikanga. The
goal of ensuring provision for the partner should be balanced with wider
whanaungatanga obligations
and whakapapa connections the deceased had with other
members of the whānau. For example, THRMOA and Chapman Tripp explained
that
in some whānau, hapū and iwi, there are instances where land might be
left to the wāhine line. In other instances,
such as the position taken
under TTWMA, a surviving partner should be provided for but not to the extent
where they take an interest
in land. Submitters also stressed that when a will
is challenged, consideration must also be given to the mana of the deceased.
Consequently,
as set out below, the court should be required to have regard to
the tikanga of the relevant whānau when deciding an appropriate
award.
Definition of “partner” for the purpose of a family
provision award
- 5.101 We
recommend that people who, prior to the death of their partner, were in
qualifying relationships for the purposes of relationship
property entitlements
should be eligible to claim a family provision
award.335F[336] Those qualifying
criteria are set out in Chapter 4. By way of summary, a qualifying relationship
would include:
(a) surviving spouses, civil union partners and de facto partners who have been
in a de facto relationship for three years or
more;336F[337]
(b) partners in a de facto relationship of less than three years that meet the
additional eligibility criteria of:
(i) there being a child of the relationship and the court considers it just to
make orders; or
(ii) the applicant has made substantial contributions to the relationship and
the court considers it just to make an order for division;
and
(c) separated partners provided that no longer than two years have elapsed
between the partners ceasing to live together in the relationship
and the death,
subject to the court’s discretion to allow a claim where more than two
years has elapsed.
Quantifying a family provision award
- 5.102 We
recommend that the amount of a family provision award to a surviving partner
should be at the discretion of the court but
guided by the matters we set out
below. Our reasons for a discretionary approach are as follows:
(a) The purpose of an award is to afford the surviving partner a reasonable,
independent standard of living, having regard to the
economic consequences of
the relationship. This is a highly factual inquiry, focusing on the
circumstances of the surviving partner
and the consequences of the
relationship.
(b) An award should factor in any provision made by the deceased to a partner
during the deceased’s lifetime, such as gifts.
It may also be relevant to
inquire into the property the surviving partner receives outside the estate,
such as property passing
by survivorship. Again, these are highly factual
matters and are best considered through the exercise of the court’s
discretion.
- 5.103 In
determining the amount of the award for partners, we recommend that the court
should take into account:
(a) the extent of the economic disadvantages the partner suffers from the
relationship;
(b) the duration of the relationship;
(c) the partner’s responsibilities for the deceased’s children;
(d) the partner’s current and likely future employment situation; and
(e) the tikanga of the relevant whānau.
- 5.104 In
addition, when considering a claim, the court should have discretion whether to
have regard to any means-tested assistance
an applicant receives from the state,
such as benefits under Part 2 of the Social Security Act 2018 or a residential
care subsidy
under the Residential Care and Disability Support Services Act
2018.337F[338] A family provision
award responds to a partner’s needs resulting from any economic
disadvantages suffered from a relationship.
It is appropriate, then, as a
general principle, that the deceased partner’s estate meet those needs in
the first instance
rather than the state, even if receipt of an award results in
a surviving partner becoming ineligible for state
benefits.338F[339] Conversely, a
court may take into account the benefits a surviving partner receives in
connection with needs that do not arise from
the relationship, such as benefits
relating to a health condition or because of injury. Benefits that are payable
to a surviving
partner irrespective of their income and assets, such as
superannuation, should be a matter to which the court has regard.
- 5.105 Some of
the factors the court should take into account are directed to the prospects
that the surviving partner will transition
to financial independence after the
deceased’s death. Some submitters commented on what it would mean for a
surviving partner
to transition from the family joint venture. Many surviving
partners, particularly those who are older people, may never achieve
financial
independence. We agree with these comments, and we would expect the quantum of
an award to reflect this possibility.
- 5.106 We note
NZLS’s concern that what would be the deceased’s separate property
under a PRA division might be available
to meet family provision awards when the
partners entered the relationship at the end of their working lives. A family
provision
award to a surviving partner is, however, made with reference to the
economic disadvantages the partner suffers from the relationship.
The types of
circumstances it is aimed at addressing are instances where, over the course of
the relationship, a partner has given
up income-earning opportunities on behalf
of the relationship, such as to care for the couple’s children. Or, to
take a different
scenario, when one partner dies, the other must give up work to
become the primary caregiver of the couple’s children. In both
cases, the
surviving partner is disadvantaged in terms of their diminished income-earning
potential.
- 5.107 In
contrast, when partners enter a relatively short relationship later in life, it
is unlikely a surviving partner will suffer
economic disadvantages from the
relationship. We do not intend a partner to be able to claim family provision
when, on the death
of their partner, they are no worse off in economic terms
than they would have been had the relationship never occurred.
- 5.108 We propose
that the award may take the form of a lump sum payment, transfer of specific
property, periodic payments, or the
establishment of a trust. Preference should
be made for a lump sum payment over periodic payments as these give claimants
greater
control and make administration of the estate quicker and less
expensive.
Interface between family provision awards for partners and
FISAs
- 5.109 As
noted, in the PRA review we recommended a regime of FISAs to share economic
advantages and disadvantages when a relationship
ends by
separation.339F[340] A FISA would
require the partners to share their income after separation for a specified
period (to a maximum of five years) based
on what the partners earned in the
period before separation and subject to the court’s power to adjust the
sharing arrangement
where necessary to avoid serious injustice. In practice, a
FISA would require the economically advantaged partner to pay the economically
disadvantaged partner an amount to equalise their respective incomes for the
duration of the FISA.
- 5.110 We
recommend against applying FISAs to relationships ended by the death of a
partner for the following reasons:
(a) Although as a matter of general principle, there is a case for sharing
economic disadvantages a partner (Partner A) suffers through
a FISA when the
advantaged partner (Partner B) dies, the economic advantages Partner B has
gained through a relationship cease on
their death and therefore cannot be
shared through a FISA. If FISAs were to be available, a very different approach
would need to
be devised to move away from notionally sharing the deceased
partner’s future income.
(b) Evidence suggests that, in most cases, partners will make generous provision
for each other in their
wills.340F[341] It is therefore
likely that if FISAs were available on death, they would be sought in a minority
of cases.
(c) Most relationships that end on the death of one partner occur in older
age.341F[342] Responding to
economic advantages and disadvantages when Partner A is at retirement age is
different to scenarios where the partners
are of working age. In many cases,
there will be no economic disparity between the partners. It may also be
difficult to identify
what economic disadvantage Partner A suffers given that,
as they are retired, they cannot suffer a diminished income-earning potential
and they may have benefited from Partner B’s income and accumulation of
assets.
- 5.111 As
recommended above, partners who separated within two years of the
deceased’s death would be eligible to claim family
provision. Our view is
that, in such circumstances, partners should lose the ability to claim a FISA.
This would depart from our
recommendation in the PRA review where we said that
the death of either partner after separation should not affect the disadvantaged
partner’s (Partner A’s) entitlement to a
FISA.342F[343]
- 5.112 Where
former partners have reached a settlement on a FISA or a court order has been
made and one of the partners dies during
the period for which the FISA is
notionally payable, we recommend that the FISA should continue to be payable
subject to the court’s
ability to order an adjustment to the FISA as
recommended in the PRA
review.343F[344]
- 5.113 An
application for an adjustment order in these circumstances could be made by
Partner B (the advantaged partner) in circumstances
where Partner A died. Where
Partner B died, the application could be brought by the personal representative
of the deceased’s
estate or by a beneficiary of Partner B’s estate.
- 5.114 A court
should have the power to make an adjustment order if it is satisfied that
failure to make an adjustment would result
in serious injustice. The court
should have regard to the considerations set out in the proposed new
Relationship Property
Act.344F[345]
Family provision awards for children
- 5.115 In
Chapter 2, we explain that good succession law should reflect public values and
attitudes in contemporary Aotearoa New Zealand.
This is especially true for the
provision family members should be able to claim from an estate when this has
the effect of altering
the terms of a will. Through our research and
consultation, it is evident that opinions in Aotearoa New Zealand are divided on
the
question of whether adult children should be eligible to seek further
provision from a parent’s estate. As discussed above,
submitters put
forward strongly opposing views. Even among those who favoured retaining adult
children’s rights to claim, submitters
gave quite varying policy
justifications, ranging from the need to respond to parental abuse through to
assisting the next generation
into housing. The differing views demonstrate the
diversity in opinion on the policy objectives of the legislation.
- 5.116 The
Succession Survey similarly revealed mixed views towards adult children’s
claims in various hypothetical scenarios.
Fifty-six per cent of respondents
agreed that an adult child should be able to challenge their parent’s will
and get a share
where the estate is left to a
charity.345F[346] A greater number
of Māori respondents, 67 per cent, agreed. Fifty-seven per cent of
respondents agreed an adult child should
be able to challenge a will that leaves
the estate to a wife (of 10 years) from a second
marriage.346F[347] Sixty-two per
cent of all respondents and 70 per cent of Māori respondents agreed that an
adult child should be able to challenge
a will that leaves the estate to another
adult child.347F[348] When the
scenario was changed so that the adult child who was left out was struggling
financially, 67 per cent of all respondents
agreed the child should be able to
challenge the will.348F[349]
- 5.117 The
Succession Survey demonstrates that, while a majority of submitters did favour
adult child claims in the specific scenarios,
the margin was in most cases
modest. Further, when respondents were probed about the reasons they gave for
their answer, respondents
gave a range of responses, most of which would require
a subjective assessment of the circumstances of the scenario in question.
For
example, respondents often said it would depend on the quality of the
relationship the child had with the
deceased,349F[350] the needs of
the adult child,350F[351] the
claims of other beneficiaries of the
estate351F[352] and whether the
adult child was fit to receive a share of the estate (for example, where they
were affected by drug addiction or
gambling).352F[353] The responses
to the specific scenarios must also be held in tension with the 80 per cent of
respondents who agreed with the statement
that a person should be allowed to
leave family members out of their
will.353F[354] The Succession
Survey can be seen as a further indication of divided opinion.
- 5.118 In light
of the considerable differences of opinion we have encountered, we are unable to
put forward a single recommendation
towards children that we believe represents
a shared view. Instead, we put forward two options for reform for the Government
to consider.
The first option proposes family provision awards for all children
and grandchildren of the deceased while the second option proposes
family
provision awards for children of the deceased who are under 25 years and
disabled children of the deceased.
RECOMMENDATIONS
R23
R24
R25
A child of the deceased eligible to claim family provision should be defined
in the new Act to include:
- any
individual for whom the deceased is considered by law to be the child’s
parent;
- an
accepted child, being a child for whom the deceased had assumed, in an enduring
way, the responsibilities of a parent; and
- a
whāngai.
A grandchild eligible to claim family provision should be defined in the new
Act to include:
- a
child considered by law to be a child of the deceased’s child;
- a
child of a whāngai of the deceased; and
- a
whāngai of the deceased’s child or whāngai.
Because of the divided opinions in Aotearoa New Zealand, no option for reform
will represent a consensus view on the circumstances
in which a deceased’s
children should be eligible to claim family provision. Consequently, the
Government should consider implementing
one of the following two options for
reform regarding children’s claims.
Option One: Family provision awards for all children and grandchildren of
the deceased
A court should make a family provision award to a child or grandchild of the
deceased where, despite whatever provision is available
to the child or
grandchild from the deceased on the deceased’s death, the deceased has
unjustly failed to:
- provide
for the child or grandchild who is in financial need; or
- recognise
the child or grandchild.
In determining whether to make an award and
the amount of an award, the court should take into account:
- the
size of the estate and the demands on it;
- the
relative financial means and needs of the claimant and other beneficiaries;
- whether
the deceased has given inadequate or no consideration to the strength and
quality of the claimant’s relationship with
the deceased over their
lifetime;
- whether
the will can be seen to be irrational or capricious;
- the
reasons (if any) given by the deceased for making their will;
- any
disability or other special needs of the claimant and of other beneficiaries in
the estate; and
- the
tikanga of the relevant whānau.
For applications made by a
grandchild, the court should take into account the provision made to the
grandchild’s parents from
the deceased.
A court should not take into account any means-tested social security
assistance a claimant receives.
Option Two: Family provision awards for children under 25 years and
disabled children
Children under 25 years
A court should make a family provision award to a child of the deceased aged
under 25 years when, taking into account whatever provision
is available to the
child from the deceased on the deceased’s death, the child does not have
sufficient resources to enable
them to be maintained to a reasonable standard
and, so far as is practical, educated and assisted towards attainment of
economic
independence.
In determining a family provision award for a child, the court must make the
best interests of the child a primary consideration,
taking into account:
- the
child’s age and stage of development, including the level of education or
technical or vocational training reached;
- any
other actual or potential sources of support available to the child, including
support from a surviving parent (including any
family provision award made to
that parent that reflects their responsibilities for the child), a trust or
provision from the estate
of another deceased parent;
- the
amount of support provided by the deceased to the child during the
deceased’s life or on their death;
- the
actual and potential ability of the child to meet their needs; and
- the
tikanga of the relevant whānau.
A court should not take into
account any means-tested social security assistance a claimant receives.
Disabled children
A court should make a family provision award to a disabled child of the
deceased when, taking into account whatever provision is available
to the child
from the deceased on the deceased’s death, the child does not have
sufficient resources to enable them to maintain
a reasonable standard of
living.
Disability should include any long-term physical, mental, intellectual or
sensory impairments that have reduced the person’s
independent function to
the extent that they are seriously limited in the extent to which they can earn
a livelihood.
A disabled adult child should be eligible if they had been wholly or partly
dependent on the deceased for support immediately prior
to death, or if the
child’s disability arose prior to them reaching 25 years.
In making a family provision award to a disabled child, the court should take
into account:
- the
child’s age and stage of development, including the level of education or
technical or vocational training reached;
- the
possibility of recovery from disability;
- any
other actual or potential sources of support available to the child, including
support from a surviving parent (including any
family provision award made to
that parent that reflects their responsibilities for the child), a trust or
provision from the estate
of another deceased parent;
- the
amount of support provided by the deceased to the child during the
deceased’s life or on their death;
- the
actual and potential ability of the child to meet their needs; and
- the
tikanga of the relevant whānau.
A court should not generally
take into account any means-tested social security assistance a disabled child
receives, but the court
should have a residual discretion to take state
assistance into account.
Children aged over 25 years or who are not disabled would be ineligible to
claim family provision.
Definition of “child”
- 5.119 Before
discussing the two options, we first set out who should be considered a child of
the deceased. The definition of child
would apply equally to both options,
albeit an age limit on eligible children would apply under Option Two.
- 5.120 We
recommend that a child of the deceased should be widely defined in the new Act
as any individual for whom the deceased is
considered by law to be the
child’s parent, including children born to the deceased and adopted
children. In addition, we recommend
that a child of the deceased should include
an “accepted child” and “whāngai”. While we
recognise that
whāngai are a different type of relationship to biological
children, for the purpose of grouping categories of eligible claimants
together
in a way that is practical for drafting, a child of the deceased should also
include whāngai.
Accepted child
- 5.121 An
“accepted child” would be a child for whom the deceased had assumed,
in an enduring way, the responsibilities
of a parent. In deciding whether the
person is an accepted child of the deceased, the court should have regard to how
much responsibility
has been assumed, why this was done, the period of time
during which the deceased maintained the child, guardianship arrangements
and
the responsibility of others for the child. Our intention is that any child
should have the opportunity to bring a claim where
the deceased had established
an ongoing and nurturing relationship with the child and became responsible for
that child. This might
include stepchildren, foster children and customary
adoptions within different ethnic
groups.354F[355] The mere fact of
the deceased being in a qualifying relationship with that child’s parent
would not be sufficient.
Whāngai
- 5.122 In
the Issues Paper we proposed that whāngai be eligible to claim from the
estate of the matua whāngai provided they
came under the category of an
accepted child. Submitters who responded to this matter generally considered the
approach to be consistent
with tikanga. After consideration, we recommend that
whāngai should be included as a standalone category of eligible children,
distinct from accepted children and other children. Some submitters stressed to
us that there is diversity among whāngai arrangements
and the reasons for
them. We therefore prefer an approach that recognises whāngai as a unique
type of relationship.
- 5.123 Some
whāngai may have been adopted or could otherwise meet the definition of an
accepted child. In addition, a whāngai
would still be considered a child of
the birth parent. A claimant may therefore be eligible to claim in multiple
categories (although
under the Adoption Act a whāngai who was adopted would
not be considered under state law as a child of their birth parent).
355F[356]
- 5.124 Although
we recommend that whāngai should be included as a category of children
eligible to claim, we consider that the
extent to which a whāngai should
receive provision from the estate of the matua whāngai and the estate of
the birth parent
is a question that should be informed by tikanga. We have heard
that, for many Māori, decisions to formally adopt a whāngai
child do
not supplant the tikanga applying to that whāngai arrangement. Accordingly,
as discussed below, when considering an
application, we recommend that the court
should have regard to the tikanga of the relevant whānau. In applications
brought by
whāngai, we expect the relevant tikanga to include
considerations relating to whakapapa and whanaungatanga. If a whāngai
has
been formally adopted, our preliminary view is that the child should remain an
eligible claimant against the estate of their
birth parent despite the terms of
the Adoption Act. We expect tikanga to qualify the extent of any award, although
we received little
feedback on this issue during consultation. We note
Tāhū o te Ture | Ministry of Justice is currently reviewing adoption
law.356F[357] It may wish to
consider this issue further.
Unborn children
- 5.125 Children
who are in utero but not born at the time of the deceased’s death hold
succession rights on live birth, including
rights to claim under the
FPA.357F[358] It is possible that
children who may be born from gametes and embryos stored for posthumous
reproduction that have not been implanted
in utero at the time of death would be
excluded from making claims against their deceased parent’s
estate.358F[359]
- 5.126 The
Advisory Committee on Assisted Reproductive Technology (ACART) has undertaken a
recent review of guidelines relating to
posthumous
reproduction.359F[360] In its
discussion document and during its deliberations, ACART proposed that, where the
deceased gave consent for their sperm or
eggs to be used to create offspring for
their partner, the wishes of the deceased should be enabled through the revised
guidelines.
- 5.127 If
posthumous reproduction is enabled through revised guidelines, we recommend that
the approach should continue that an unborn
child of the deceased must be born
alive having been in utero at the time of the deceased’s death to be
eligible to claim family
provision. In the Issues Paper, we proposed that unborn
children in utero prior to the expiry of the limitation period should be
eligible for family provision, thereby allowing a limited window for children
posthumously conceived to claim. We have departed from
this proposal for two
main reasons.
- 5.128 First, it
appears unlikely an embryo could be implanted in utero through a posthumous
reproductive procedure before the expiry
of the limitation period. ACART has
proposed that posthumous use of gametes and embryos should require ethics
approval from the Ethics
Committee on Assisted Reproductive Technology
(ECART).360F[361] It is reasonable
to assume that people applying for approval will take some time to process the
death and make an application. Currently,
ECART meets six times a year and only
considers around 12 ethics approval applications for all assisted reproductive
procedures at
each meeting. This means sometimes people will have to wait
several months for their application to be
considered.361F[362] Once an
application is granted, further time is needed for the posthumous reproduction
procedures to get underway. By the time an
embryo has been implanted in utero,
it is probable that the limitation period to commence a family provision claim
will have long
passed.362F[363] An
alternative approach could be taken that would allow for time limits to be
extended where posthumous reproduction is contemplated.
However, this could
result in lengthy and potentially indefinite delays to the distribution of an
estate, which are not desirable.
- 5.129 Second,
ACART has proposed that, when considering an application for ethics approval,
ECART must be satisfied that the intending
parent or parents have been
encouraged to seek legal advice to ensure they understand, among other things,
the implications for the
resulting child’s inheritance
rights.363F[364] While obtaining
legal advice cannot guarantee provision will be available from the
deceased’s estate for children born through
posthumous reproduction, it
should cause the parties to consider the future needs of a child. This could
include succession under
TTWMA or to taonga as contemplated in Chapter 3 where
the necessary whakapapa or other connections exist.
Option One: Family provision awards for children and
grandchildren of all ages
- 5.130 The
first option we present is to allow family provision awards for children and
grandchildren of all ages.
- 5.131 We have
concluded that the new Act should clearly set out the basis for adult children
to claim family provision. It is, however,
difficult to identify what the
appropriate basis should be. There is considerable diversity in the views held
by submitters who supported
adult children’s claims. For example, some
submitters considered the court should continue to hold a broad discretion to
remedy
breaches of moral duty. On the other hand, some submitters said awards
should be restricted to cases of “serious injustice”
where further
provision is needed to alleviate a child’s financial need. Whichever way
the FPA is reformed will cause some
to disagree.
- 5.132 We have
therefore attempted to identify grounds that, among the range of views, received
the most support from submitters who
wished to retain adult child claims. We
have also been mindful that the test for an award should, to the extent
possible, provide
predictable outcomes.
- 5.133 Accordingly,
under this option, the court should grant further provision to a child or
grandchild of the deceased where, despite
whatever provision is available under
the deceased’s will or in an intestacy, the will-maker has unjustly failed
to:364F[365]
(a) provide for a child or grandchild who is in financial need; or
(b) recognise the child or grandchild.
- 5.134 The
definition of child is set out above. A grandchild should include all children
considered by law to be the deceased’s
children. It should also include
children of a whāngai of the deceased and a whāngai of the
deceased’s child, although
we expect the tikanga of the relevant
whānau to be relevant to the extent of any award. Where a grandchild is a
whāngai
and the deceased grandparent is their matua whāngai, the
grandchild would be an eligible claimant as a whāngai and grandchild.
That
does not mean, however, they would be eligible to make two separate claims.
Again, we expect the tikanga of the relevant whānau
would address the
extent of any award to the whāngai/grandchild. We do not recommend that a
child who would otherwise be considered
an “accepted child” of the
deceased’s child should be considered an eligible grandchild. In these
circumstances,
we do not consider a grandparent-grandchild relationship can be
assumed to exist.
Grounds for an award
- 5.135 The
first ground on which the court could make a family provision award is to
alleviate a child or grandchild’s financial
need. The ground is directed
to instances where a child is unable to maintain a reasonable standard of
living. The court’s
inquiry should take into account any special needs of
the child given their particular circumstances, such as their age or a
disability.
Because family provision would be available only where the deceased
has unjustly failed to provide for the child, we would not expect a court
to grant an award where the applicant’s financial need is attributable
to
their own reckless or wasteful behaviour.
- 5.136 The second
ground would address instances when the provision that a will-maker has made for
a child or grandchild can be described
as unjust because it does not properly
recognise them. We intend this ground to apply to situations submitters commonly
identified
as instances in which people make “inappropriate” wills.
For example, where, in light of the size of an estate and the
other demands on
it:
(a) the will-maker has developed some unreasonable prejudice such that the terms
of the will can be seen as irrational or capricious
towards the child or
grandchild; or
(b) the deceased has omitted to consider the strength and quality of their
relationship with the child or grandchild over their lifetime.
- 5.137 The policy
basis for this option rests on the expectation that most parents should provide
for their children on their death,
either to ensure they have a reasonable
standard of living or simply to recognise the parent-child relationship. The
option stresses
the importance of the family bonds and, in te ao Māori, the
importance of whakapapa and whanaungatanga. It also recognises the
mana of the
deceased and recognises there may be instances where a will-maker can
justifiably make a will that does not provide for
a child or grandchild.
- 5.138 To reflect
these objectives, we recommend that the factors a court should take into account
when considering an application
for family provision should
be:365F[366]
(a) the size of the estate, including any property available through the new
Act’s anti-avoidance
provisions,366F[367] and the
demands on it;
(b) the relative financial means and needs of the claimant and other
beneficiaries;
(c) whether the deceased has given inadequate or no consideration to the
strength and quality of the claimant’s relationship
with the deceased over
their lifetime;
(d) whether the will can be seen to be irrational or capricious;
(e) whether the deceased has ignored or been unaware of the claimant during the
deceased’s lifetime;
(f) the reasons (if any) given by the deceased for making their will;
(g) any disability or other special needs of the claimant and of other
beneficiaries in the estate; and
(h) the tikanga of the relevant whānau.
- 5.139 For
applications made by grandchildren, the court should consider the additional
factors of what provision is available to the
grandchild’s parents from
the deceased.367F[368] We consider
that in most cases any provision the deceased makes to a child, being the
grandchildren’s parent, would benefit
the grandchild. The main concern is
instances in which the grandchild’s parents have died or cannot be relied
upon to benefit
the grandchild. This factor may be of less relevance if the
grandchild is also a whāngai of the deceased.
- 5.140 A question
arises as to whether a court should be required to take into account welfare
support an applicant (or their guardian)
receives from the state. As noted, the
policy behind an award is that a parent ought to be expected to make provision
in response
to a child’s financial need. It follows that this obligation
should take priority over the state’s obligation to provide
a
benefit.368F[369] We therefore
recommend that a court should not generally take into account any means-tested
assistance an applicant receives under
Part 2 of the Social Security Act.
- 5.141 Many of
the principles derived from existing case law under the FPA would continue to be
relevant. For
example:369F[370]
(a) mere disparity in the treatment of beneficiaries would not be sufficient to
establish a claim;
(b) the court’s power would not extend to rewriting a will because of a
perception it is unfair; and
(c) an award should disturb the deceased’s will no more than is
necessary.
- 5.142 We
consider this option would provide more clarity in the legislation as to what
the court should be aiming to achieve in an
award. Nevertheless, we remain
concerned that it still gives the court a broad discretion to determine what are
highly subjective
matters on which reasonable minds may differ.
- 5.143 It could
also be argued that allowing the court to redistribute an estate because of a
perception the will-maker has acted irrationally
or without properly considering
their children is both paternalistic and undermines the notion of testamentary
capacity (which can
itself be tested under other law). These were, however,
grounds favoured by several submitters.
- 5.144 The option
is inconsistent with the views of many submitters who felt strongly that
will-makers should owe no duties towards
adult children. As we have explained,
what option should be preferred is ultimately a difficult policy choice based on
values and
philosophies towards testamentary freedom and obligations to family
and whānau.
- 5.145 We
acknowledge the submitters who said the law should continue the court’s
discretion to provide for children’s
needs, taking a broad view of what
“needs” mean. We remain of the view that this approach would not
enable will-makers
and parties to a dispute to read the new Act and understand
their rights and obligations, even if the new Act attempted to define
what is
meant by a child’s needs. We prefer the option outlined above as a more
confined and clearer articulation for the basis
of a claim.
Option Two: Family provision awards for children under 25 years
and disabled children
- 5.146 Under
this second option, the deceased’s children who are under 25 years of age
or who are disabled would be eligible
to claim family provision from a deceased
parent’s estate. Children who fall outside these two categories would be
ineligible
to claim.
Category one: Children under 25 years
- 5.147 Under
this option, we recommend that the deceased’s children who are younger
than 25 should be able to make a family provision
claim from the estate when
they would receive inadequate provision under the deceased’s will or in an
intestacy. The court
should have discretion to grant an award from the
deceased’s estate to enable the children to be maintained to a reasonable
standard and, so far as is practical, educated and assisted towards attainment
of economic independence.
- 5.148 Family
provision awards for children would be based on Aotearoa New Zealand’s
overarching obligation under the United
Nations Convention on the Rights of the
Child (UNCROC) to make a child’s best interests a primary consideration in
matters
concerning
children.370F[371] The proposed
approach is also consistent with a parent’s duties to maintain their
children consistent with the Care of Children
Act 2004, the Child Support Act
1991 and section 152 of the Crimes Act 1961.
- 5.149 Like
provision for surviving partners, we expect that tikanga, particularly,
whanaungatanga, aroha and manaakitanga, would ensure
that young children of a
deceased person are cared for both financially and emotionally. We are therefore
satisfied this category
of family provision is not inconsistent with tikanga.
Tikanga may, however, be relevant to the extent to which a child should be
eligible to claim against the estate, particularly if they are a tamaiti
whāngai. Tikanga may be relevant to determine what
provision should be made
for the children. We note these considerations below.
- 5.150 Grandchildren
would not be eligible in this option as a standalone category of claimants.
Rather, their only avenue to claim
against the estate of a grandparent would be
as a whāngai of the deceased, or where the grandchild is an “accepted
child”
where the grandparent accepted parental responsibilities for the
grandchild. We note the comments of some submitters, like NZLS,
who argued that
it is not uncommon for grandchildren to be cared for by grandparents and thus it
is appropriate for grandchildren
to form a standalone category. In our review of
the case law, very few cases are brought by infant
grandchildren.371F[372] Further,
if a grandparent did care for a child, we would expect that it would not be
difficult to satisfy a court that a child is
an accepted child of the
grandparent.
Age limit of 25 years for children eligible to make family
provision claim
- 5.151 Under
this option, the new Act would impose a maximum age limit. We recommend that a
claimant child would need to be 25 years
old or younger at the time the parent
died and would only be able to claim family provision for the period up until
they turned the
prescribed age.
- 5.152 In the
Issues Paper, we presented three options for the prescribed age: 18, 20 or 25
years. Submitters strongly favoured the
prescribed age of 25. Many agreed with
our view that, at 25, young adults are maturing towards adult responsibility and
independence.
Some may be studying or have not long started their working life.
The later age would recognise that common societal “markers
of
adulthood” such as marriage, children, home ownership and fulltime work,
are often happening later in
life.372F[373] At this stage of
life, young adults may continue to benefit from parental support. Scientific
research has shown that parts of the
brain controlling decision-making and
impulses continue to develop in the early
20s.373F[374] There are also laws
reflecting the expectation that parents will provide financial support to their
children into their early 20s.
For example, until a student reaches 24 years,
their eligibility for a student allowance generally depends on their
parents’
income,374F[375]
and under the Oranga Tamariki Act 1989, a young person is entitled to be
supported to live with a caregiver until they are
21.375F[376]
- 5.153 Where age
restrictions are imposed by family provision legislation in comparable
jurisdictions, eligibility may be extended
into the 20s for children who are
undertaking further
education.376F[377]
Quantifying a family provision award
- 5.154 We
recommend that, in determining a family provision award for a child, the court
must make the best interests of the child
a primary consideration, taking into
account:377F[378]
(a) the child’s age and stage of development, including the level of
education or technical or vocational training reached;
(b) any other actual or potential sources of support available to the child,
including support from a surviving parent (including
any family provision award
made to that parent that reflects their responsibilities for the child), a trust
or provision from the
estate of another deceased parent;
(c) the amount of support provided by the deceased to the child during the
deceased’s life or on their death;
(d) the actual and potential ability of the child to meet their needs; and
(e) the tikanga of the relevant whānau.
- 5.155 Like
Option One, we recommend that a court should not generally take into account any
means-tested assistance an applicant or
their caregiver receives under Part 2 of
the Social Security Act.
- 5.156 We
recommend that the court should have discretion as to the form of an order,
whether to award a lump sum, order transfer of
specific property, order periodic
payments or establish a trust. A family provision award in favour of a child
should be presumed
to be payable to the guardian of the child, except where the
child is 18 years or older or the court considers it
inappropriate.378F[379] This would
enable money to be used for the support of the child during their childhood.
Paying money to the child’s guardian
would also be consistent with the
Child Support Act.
Children over 25 years are ineligible to claim
- 5.157 This
option is based on the view that a parent’s obligation to make
testamentary provision for their child should cease
when the child reaches age
25. As discussed, many submitters held a strong preference for respecting a
parent’s choice as to
who to leave their property to when they die. They
explained that a parent’s decision to provide for an adult child or not
will generally be carefully considered. It is paternalistic for the law to
substitute the deceased’s reasons with a court’s
decision on the
distribution of an estate.
- 5.158 This
option also recognises the potential impacts adult child claims may have on
families. It avoids disputes that centre on
the nature of the relationship
between the deceased and the child. Some submitters emphasised the negative
consequences of protracted
litigation with very personal details and unpleasant
family history being dredged up.
- 5.159 We
acknowledge the views of submitters who said the sense of injustice a child
feels, having been excluded under a deceased’s
will, outweighs the heavy
toll FPA litigation takes on families. Ultimately, these are qualitative
assessments that must be balanced
in light of the extent one considers adult
children should be entitled to succeed to the property of a parent.
- 5.160 Some
submitters maintained that it is desirable for the court to redistribute a
deceased’s estate to respond to parental
wrongdoing, such as abuse or
neglect of their child. A counterargument to these views is that the law already
responds, such as through
the criminal law, tort or fiduciary
law.379F[380] We think it is
inappropriate for the court to redress alleged misconduct through a broad
discretion to grant a child further provision
from the estate.
- 5.161 We also
acknowledge submitters’ observations that removing rights of adult
children to claim under the FPA will not reduce
litigation. These submitters
considered adult children will instead bring another claim, such as challenging
the deceased’s
testamentary capacity or other causes of action relating to
contributions of work or property to the deceased. While that may be
the case,
it may be seen as preferable because the other claims reflect a sounder policy
basis for recovery.
- 5.162 Some
submitters expressed concerns relating to the situation where a parent leaves
the bulk of the estate to a surviving partner
in the expectation the partner
then provides in their will for the deceased’s children from a former
relationship. If the surviving
partner decides to make no provision for the
deceased children, they will have no means of redress. A response to this
concern is
that the deceased could structure their affairs in a way that ensures
provision for their children. For example, the deceased could
gift property
outright to their children. As we recommend in Chapter 10, the deceased could
enter an agreement with their partner
that provided for the children. The
deceased could contemplate some other type of arrangement such as granting the
surviving partner
a life interest in the estate property. While we recognise all
these options have their shortcomings, any method of balancing the
interests of
a surviving partner and children from a prior relationship has its difficulties.
In Chapter 16, we recommend that the
Government should consider improving public
education about the law. This campaign could include measures on how to ensure
provision
for children from a former relationship.
- 5.163 Lastly, we
recognise that some may consider an age limit of 25 years on a child’s
eligibility to claim family provision
to be inconsistent with an ao Māori
perspective. While some submitters such as THRMOA and Chapman Tripp said an age
limit may
not necessarily clash with tikanga, they cautioned that prescribed
rules do not accord well with tikanga. An age limit may preclude
consideration
of specific circumstances in which tikanga would respond. Some submitters
considered that whanaungatanga, manaakitanga,
aroha and utu may be relevant to
enable provision for adult children from the estate of a deceased parent.
However, we understand
that aroha is particularly relevant to tamariki who are
young children, more so than adult children, and this distinction exists
already
in te ao Māori. We note further that, despite the default rules of the new
Act, whānau and other affected parties
would be able to come to a mutual
agreement through tikanga processes on the distribution of an estate to adult
children. However,
we recognise that this option does not provide a basis for
adult children to claim family provision when the family cannot reach
agreement.
- 5.164 We also
note the implications this option may have for succession to Māori land.
Orders can be made under the FPA granting
a child of the deceased an interest in
Māori freehold land.380F[381]
The Māori Land Court has jurisdiction to consider claims under the FPA that
relate only to Māori freehold
land.381F[382] Under this option,
adult children would not have rights to claim family provision and,
consequently, they would not be able to seek
interests in Māori freehold
land on this basis. As we set out further below, the Government may wish to
consider further the
relationship between succession to Māori freehold land
and family provision.
Category two: Family provision awards for disabled
children
- 5.165 We
recommend that the new Act should provide for a category of family provision for
children of any age who are disabled.
- 5.166 The court
should order family provision where, despite the provision available to the
child from the deceased on the deceased’s
death, the child does not have
sufficient resources to enable them to maintain a reasonable standard of living.
Submitters strongly
favoured this category of family provision. The Succession
Survey showed high levels of support for disabled children. Eighty-seven
per
cent of respondents agreed that a disabled adult child should be able to
challenge a parent’s will that leaves the entire
estate to
charity.382F[383] Family provision
legislation in several comparable jurisdictions addresses disabled children of
any age alongside minor
children.383F[384]
- 5.167 Disability
should be defined broadly in the new Act and consistently with Article 1 of the
Convention on the Rights of Persons
with Disabilities (CRPD). Any long-term
physical, mental, intellectual or sensory impairments are
included.384F[385] Eligibility
under this category would require that the disability reduces the person’s
independent function to the extent that
they are seriously limited in the extent
to which they can earn a
livelihood.385F[386]
- 5.168 In our
view, further criteria would need to be met to limit the interference with the
deceased’s testamentary freedom
and to recognise that the general (at
least implied) policy of Aotearoa New Zealand’s welfare and support law is
that a parent’s
responsibility for their child ends when the child is no
longer a minor, even if that child is
disabled.386F[387] Eligibility
would therefore also require that:
(a) the child’s disability occurred prior to them reaching age 25;
and/or
(b) the child was wholly or partly dependent on the deceased for support
immediately prior to death.
Quantifying a family provision award to a disabled
child
- 5.169 In
making a family provision award to a disabled child, we recommend that the court
should take into account:
(a) the child’s age and stage of development, including the level of
education or technical or vocational training reached;
(b) the possibility of recovery from disability;
(c) any other actual or potential sources of support available to the child,
including support from a surviving parent (including
any family provision award
made to that parent that reflects their responsibilities for the child), a trust
or provision from the
estate of another deceased parent;
(d) the amount of support provided by the deceased to the child during the
deceased’s life or on their death;
(e) the actual and potential ability of the child to meet their needs; and
(f) the tikanga of the relevant whānau.
- 5.170 A question
arises as to whether a court should be required to take into account any
financial assistance an applicant receives
from the state in connection with
their disability. The answer to this question is perhaps less clear than it is
for other categories
of family provision claimants. Generally, state assistance
is available to people with disabilities regardless of their parental
support.
Views are likely to differ as to whether responsibility to provide for a
disabled adult who is unable to provide for themselves
should fall primarily on
a parent or on society generally. Our view is that the court should, as a
starting point, disregard any
state assistance the applicant receives when
making an award. That approach accords with the principle underlying this option
that
parents should be expected to provide for the needs of their disabled
children in the circumstances to which this option applies.
The court should,
however, have discretion to take state assistance into account. That might be
appropriate, for example, where the
estate is small or there are other
beneficiaries and claimants to
consider.387F[388] It might also
be a relevant consideration if, were a disabled child to receive a family
provision award, they might lose entitlements
to means-tested state
benefits.388F[389]
- 5.171 Again, the
court should have discretion as to the form of an award.
Other matters
Parents
- 5.172 Parents
have been eligible claimants since 1943, but there have been very few cases
involving a claimant parent. Although many
children will provide for their
ailing parents in later life, this is not a legal requirement, nor is it
reliable to infer that,
because someone was providing support to a person when
they died, they would have wanted this support to be continued. The Succession
Survey respondents were divided about whether a parent should be able to
challenge their child’s will and get a share of the
estate, but more than
half (52 per cent) said this should not be
allowed.389F[390]
- 5.173 Very few
submitters commented on the eligibility of parents. Four submitters were in
favour of retaining parents’ rights
to claim. ADLS commented that most
people do not expect to die before their parents, but if they died and had
assets “to spare”
after making provision for a partner and children,
parents should be provided for. Morris Legal noted that some parents migrate to
Aotearoa New Zealand to retire and live with their children and may not be
eligible for a New Zealand pension. They said that it
may be appropriate to
leave in place some mechanism for parents to claim when they are in financial
need and the deceased was maintaining
them at the date of their death. TGT
Legal, on the other hand, supported the removal of parents as eligible claimants
as there is
no legal requirement to support parents and parents could bring a
testamentary promise or other claim to seek recompense for services
rendered to
the child.
- 5.174 From an ao
Māori perspective, we think whanaungatanga would ensure parents and matua
whāngai of a deceased are supported.
However, we received few submissions
on this point.
- 5.175 Parents of
the deceased should not be eligible claimants under the new Act. We are mindful
of the very few cases that have been
brought by parents and the general approach
taken in law and policy that does not require children to maintain their
parents.390F[391] Children
concerned about their parents’ future welfare should be encouraged to
provide for them in their will.
Te Ture Whenua Maori Act 1993 and family provision
RECOMMENDATION
R26
The Government should consider whether and, if so, how family provision under
the new Act should relate to succession of Māori
freehold land under Te
Ture Whenua Maori Act 1993.
- 5.176 As noted
above, a court may redistribute interests in Māori freehold land pursuant
to an award under the FPA provided the
order does not have the effect of
alienating any interest to any person other than the child or grandchild of the
deceased.391F[392] The Māori
Land Court has jurisdiction to determine FPA claims that relate only to
Māori freehold land.392F[393]
- 5.177 In Chapter
3, we recommend that state succession law should have no application to taonga.
Instead, taonga should be dealt with
consistently with the tikanga of the
relevant whānau or hapū. As TTWMA recognises, Māori freehold land
is a taonga
tuku iho. It seems strange that the FPA overlays the regime
governing succession to Māori freehold land (albeit with the restrictions
on alienation). It is unclear from the FPA and TTWMA on what basis a court would
adjust the succession of Māori freehold land
given its unique status.
Indeed, as discussed above, the cases show the courts have been willing to make
awards under the FPA regarding
Māori freehold land without much engagement
of the relevant
tikanga.393F[394]
- 5.178 The terms
of reference for this review of succession law do not extend to reform of TTWMA.
We therefore recommend the Government
should consider further whether and, if
so, how family provision awards under the new Act should apply to succession to
Māori
freehold land.
CHAPTER 6
Contribution claims
IN THIS
CHAPTER, WE CONSIDER:
- the claims a
person who has provided a benefit to the deceased can bring against an
estate.
CURRENT LAW
- 6.1 Sometimes,
people will provide benefits to someone who later dies. These benefits could
include money, work, property, or services.
Sometimes, these benefits are
provided in the expectation that the person providing them (a contributor) will
receive something in
return from the deceased’s estate. There are several
claims a contributor can make against an estate.
The TPA
- 6.2 When
the deceased promised to reward the contributor in their will but failed to do
so, there is a statutory remedy. The contributor
may claim an award from the
estate under the Law Reform (Testamentary Promises) Act 1949 (TPA). To establish
a TPA claim, the contributor
must
show:394F[395]
(a) the contributor rendered services to, or performed work for, the deceased
during the deceased’s lifetime;
(b) the deceased either expressly or impliedly promised to reward the
contributor;
(c) there is a nexus between the services rendered or work performed and the
promise; and
(d) the deceased failed to make the promised testamentary provision or to
otherwise remunerate the contributor.
- 6.3 The award
amount must be reasonable in all the circumstances of the case, having regard to
certain factors listed in section 3(1)
of the
TPA.395F[396]
Contract
- 6.4 If
there is a contract between the contributor and the deceased, the contributor
could enforce that contract against the estate.
Constructive trust
- 6.5 A
contributor might claim a constructive trust over the estate. To establish a
constructive trust, a contributor must
show:396F[397]
(a) contributions, direct or indirect, to the deceased’s property;
(b) the expectation of an interest therein;
(c) that such an expectation is a reasonable one; and
(d) that the legal owner of the property should reasonably expect to yield the
claimant an interest.
- 6.6 The amount
of an award will be the value of the contributions that give rise to a
constructive trust or the particular property
if it is
appropriate.397F[398]
Estoppel
- 6.7 A
contributor may claim estoppel by showing that the deceased encouraged them to
expect that they would receive an interest in
the recipient’s property and
that they provided the benefit in reliance on this expectation. To establish
estoppel, the contributor
must
show:398F[399]
(a) a belief or expectation has been created or encouraged through some action,
representation or omission to act by the legal owner
of the property;
(b) the belief or expectation has been reasonably relied upon by the
contributor;
(c) detriment will be suffered if the belief or expectation is departed from;
and
(d) it would be unconscionable for the party against whom the estoppel is
alleged to depart from the belief or expectation.
- 6.8 The amount
and form of an award is largely discretionary and can respond to the
circumstances of the
case.399F[400]
Unjust enrichment
- 6.9 Although
the law is continuing to develop in this area, te Kōti Matua | High Court
has held that claims in Aotearoa New Zealand
may be founded on unjust
enrichment.400F[401] To establish
unjust enrichment the contributor must show:
(a) proof of the recipient’s enrichment by receipt of a benefit;
(b) a corresponding deprivation by the contributor; and
(c) the absence of any “juristic reason” for the enrichment (meaning
there was no legal reason for the enrichment, like
a
contract).
- 6.10 The amount
of an award is the gain the recipient made at the contributor’s
expense.401F[402] A remedy may be
proprietary (by way of a constructive trust) or monetary (by way of a personal
remedy).402F[403]
Quantum meruit
- 6.11 Contributors
might make a claim for quantum meruit where the recipient requested or freely
accepted services without paying for
them and the recipient knew that the
contributor expected to be reimbursed for those
services.403F[404] To establish a
claim for quantum meruit, a contributor must
show:404F[405]
(a) the recipient asked the contributor to provide services or freely accepted
services provided by the contributor; and
(b) the recipient knew (or ought to have known) that the contributor expected to
be reimbursed for those services.
- 6.12 The award
amount will be the reasonable cost of providing the
services.405F[406]
NGā TIKANGA
Utu
- 6.13 In
the Issues Paper, we noted that utu is concerned with “the maintenance of
relationships and balance within Māori
society”.406F[407] Life is
kept in balance by the principle of utu, which operates in relation to
individuals, groups and
ancestors.407F[408] An
understanding of utu can only be achieved by placing it within the context of
mana and tapu, as utu governs relationships where
a breach of tapu or an
increase or decrease in mana has
occurred.408F[409] Utu also
denotes the idea of ongoing reciprocity, which provides for the ongoing
maintenance of
relationships.409F[410]
Take-utu-ea
- 6.14 As
well as being a stand-alone principle, utu can sit within the take-utu-ea
framework.410F[411] This is a
framework for assessing breaches of tikanga and what the appropriate utu is to
reach a state of ea, or resolution. The
breach of tikanga becomes the take
(cause), which upsets the natural balance of things and requires action to be
taken. Both parties
usually have to agree that there is a take. The appropriate
response is the utu, which is done to reach a resolution that satisfies
all
parties. The state of resolution at the end of the process is ea.
Whanaungatanga and whakapapa
- 6.15 Whanaungatanga
can encapsulate both kin and non-kin
relationships.411F[412] In our
view, in the context of contributions whanaungatanga means that the nature of
the relationship between the deceased and the
contributor is a factor that must
be taken into account. Chapman Tripp pointed us to a whakataukī that
demonstrates the importance
of whanaungatanga in this context: “Ko te here
o te aroha, tē taea te wetewete” (“The bond of compassion is
unbreakable”).
- 6.16 Contributions
may be made by those who share a close whakapapa connection with the deceased or
by those who do not share any
whakapapa connection at all. Our understanding is
that whether the deceased and the contributor share a close whakapapa
relationship
is an important factor when considering the appropriate response to
the contributions according to tikanga Māori.
Mana
- 6.17 Utu
operates in response to increases or decreases in
mana.412F[413] We consider that,
from an ao Māori perspective the appropriate response to contributions is
relative to the increase in mana
caused by the contributions and not the
contributions themselves. In this sense, tikanga Māori may dictate a
different outcome
than a response that does not take mana into account.
- 6.18 These
tikanga may be balanced through the process of kōrero to determine the
appropriate outcome in a particular context.
ISSUES
The law is complex and uncertain
- 6.19 The
main issue with the current law is its complexity and uncertainty. A contributor
can potentially bring several claims against
an estate in respect of the same
contributions, each with different inquiries and awards available. This can
lengthen litigation
and increase costs. It also makes predicting outcomes and
awards difficult, which can discourage parties from settling claims out
of
court.
- 6.20 The
potential for claimants to choose between multiple claims on the same facts to
maximise their award is also unsatisfactory.
For example, claimants may choose
between a proprietary remedy based on a constructive trust if the value of the
property in question
has increased, or a TPA claim if it has decreased.
- 6.21 The TPA is
framed in outdated and inaccessible language and does not conform with modern
drafting standards. The other claims
are found in case law rather than statute
so can be inaccessible for that reason.
- 6.22 Some of the
law, particularly unjust enrichment and quantum meruit, is developing. Cases
have taken different approaches when
deciding the availability and elements of
the claims. In particular, there is a debate as to whether unjust enrichment is
a separate
and broad cause of action that encompasses quantum meruit
cases.413F[414] This debate may
have practical consequences for claimants. If the foundation of quantum meruit
is unjust enrichment, the focus of
the inquiry will be ensuring that the
recipient gives up any benefits unjustly received. However, if it is not, the
focus of the
inquiry may be ensuring that the reasonable costs of providing the
services by the contributor are returned to
them.414F[415]
- 6.23 Life
expectancy in Aotearoa New Zealand is progressively increasing and is projected
to continue.415F[416] As life
expectancy increases, more people may need to rely on informal care
arrangements.416F[417] These
informal care arrangements are often ones to which contribution claims have
responded. It is important for the law to be clear
regarding the parties’
rights and obligations in these arrangements. Additionally, if adult children
were no longer able to
make claims for family provision, more adult children may
bring a contribution claim if they consider they have not been adequately
provided for in their parent’s will or under the intestacy
regime.
Tikanga Māori has not been woven into the
law
- 6.24 A
reading of the TPA, its legislative history, and case law relating to claims
made under the TPA and on other grounds set out
above makes it clear that
tikanga Māori has not been taken into account to date. This means that this
law has not given proper
attention to the constitutional significance of
tikanga, as discussed in Chapter 2.
RESULTS OF CONSULTATION
- 6.25 We
received many submissions that commented on our proposals for contribution
claims, both on the public consultation website
and the Issues Paper. We asked
submitters to comment on the issues with the current law. We proposed two
options for reform:
(a) Option One: Introduce a single, comprehensive statutory claim in place of
the TPA and other causes of action available for contributions
made to the
deceased or their estate. It was aimed at responding to the complexity,
uncertainty and inaccessibility of the current
law. In the Issues Paper, we
presented draft legislative provisions for how the statutory claim might
look.
(b) Option Two: Retain the TPA cause of action within the new Act and leave the
remaining claims to operate outside the statute.
- 6.26 We received
several submissions that expressed general concern with the current law. Reasons
for this were varied. Some submitters
did not give a reason, but most of the
submitters stated that the current law seemed complex. Some expressed general
concern with
any claims that interfered with the contents of a will. A few
submitters said that only contracts made during the deceased’s
lifetime
should be enforceable. Several submitters had concerns over establishing a
promise when one party was no longer alive to
give evidence. Other points raised
included:
(a) the law should not compensate people for simple “acts of
kindness”;
(b) contributors should get nothing unless they are able to prove an express
promise; and
(c) the law needs to take into account benefits the contributor received during
the deceased’s lifetime.
- 6.27 Nearly all
website submitters expressed general agreement with our Option One to codify
contribution claims within the new Act.
Most people did not give reasons, but
some agreed that the law should be simplified. Several submitters made general
statements that
contributors deserve to be reimbursed for their contributions.
Some submitters agreed with Option Two to carry the TPA into the new
Act and
update it to modern drafting standards.
- 6.28 Of
submitters to the Issues Paper, several submitters, including Te Kāhui Ture
o Aotearoa | New Zealand Law Society
(NZLS),417F[418] the Family Law
Committee of Auckland District Law Society
(ADLS)418F[419] and Chapman Tripp,
expressed agreement in principle with a single, comprehensive contribution claim
that codified the TPA and other
equitable and common law claims. A few
submitters expressed agreement with a comprehensive cause of action but did not
think it should
be a codification and that the equitable remedies should remain
available.
- 6.29 Some
submitters noted that the draft provisions did not focus on a representation
from the deceased of reward or that the contributor
held a reasonable
expectation of reward. Some were concerned that the words “just and
reasonable” are inherently subjective
and the cause of action provides
courts with more discretion than the current law. A common complaint among most
of these submitters
was that the draft provisions cast the net too wide and
would result in frivolous or unmeritorious claims.
- 6.30 A few
submitters did not think that contribution claims should apply to contributions
made to the deceased’s estate after
their death. Bill Patterson noted that
these claims are rarely brought in practice and, by having contribution claims
available for
contributions to a deceased’s estate, estate claims will
multiply. ADLS commented that succession law should be limited to
what happens
during a deceased’s lifetime and contributions made to a deceased’s
estate are essentially administrative
matters for the personal representative to
manage. NZLS said that the current law should continue to apply in respect of
contributions
made to the deceased’s estate after their death, with
tracing available if allowed. It said that, otherwise, a distribution
of the
estate is likely to be delayed.
- 6.31 Jan
McCartney QC and Patterson preferred to retain a TPA cause of action along with
other available causes of action. Dr Tobias
Barkley submitted that our draft
proposals should be clarified in their relationship to claims arising from
detrimental reliance.
He noted that equitable estoppel claims are framed as the
claimant relying on the deceased’s promise to their detriment and
do not
necessarily require a benefit be provided to the deceased. A few submitters
commented that the removal of adult children claims
under the Family Protection
Act 1955 would mean that these claimants will turn to contribution claims in
order to get something from
the estate.
- 6.32 Te Hunga
Rōia Māori o Aotearoa (THRMOA) and Chapman Tripp commented that utu
plays a significant role in determining
how contributions should be treated in
te ao Māori. They noted that there is an expectation through tikanga that
actions are
responded to in kind to maintain balance, whether between kin or
non-kin. This may give rise to a stake in an estate. However, utu
would only be
one factor in the kōrero process to resolve a claim against an estate.
MinterEllisonRuddWatts noted that, in this
context, utu should be underpinned by
the concept of ea (achieving a state of balance). The application of ea may
sometimes yield
a different result than the application of state law. THRMOA
also noted that utu does not follow a prescribed system of like for
like that
might be equated with the Western concept of reciprocity because utu is not
economic but cultural. THRMOA noted further
that utu does not respond only to
the specific contribution but also to the nature of the relevant
relationship.
CONCLUSIONS
RECOMMENDATIONS
R27
The Law Reform (Testamentary Promises) Act 1949 should be repealed. In its
place, a testamentary promise cause of action should be
available under the new
Act. Other causes of action at common law or equity arising from contributions
made towards a person who
has since died should continue to operate outside the
new Act.
R28
A court should grant a testamentary promise award to a claimant where:
- the
claimant has rendered services to or performed work for the deceased during the
deceased’s lifetime;
- the
services or work must have been substantial in that they required the claimant
to contribute significant time, effort, money or
other property, or to suffer
substantial detriment;
- the
claimant must not have been fully remunerated for the work or services;
- the
deceased expressly or impliedly promised to make provision in their will for the
claimant in return for the work or services;
and
- the
deceased has failed to make the promised testamentary provision or otherwise
fully remunerate the claimant.
R29
The quantum of an award should be the amount promised by the deceased,
subject to the court’s overriding discretion to grant
an award that is
reasonable in the circumstances.
- 6.33 We received
largely positive responses to Option One, with the simplification of the law in
this area being a primary attraction.
Nevertheless, we have concluded that it is
not desirable to recommend a single, comprehensive statutory cause of action.
This is
for several reasons highlighted in submissions:
(a) Different remedies at general law have particular historical origins and
respond to particular policy issues. There is a risk
that important avenues of
relief may be lost in consolidating these remedies into a single cause of action
in place of the wider
law.
(b) Claims based upon detrimental reliance, such as estoppel, should be allowed
to continue alongside the proposed cause of action
due to the different basis
they have and the different type of relief they
provide.419F[420] This would mean
claimants would need to refer to law outside the new Act to understand their
rights fully, significantly detracting
from the policy justification of
simplicity and efficiency behind the proposal.
(c) There are potential inefficiencies and complexities in requiring claimants
to rely on entirely different law depending on whether
a defendant is alive or
dead when the claims arise from the same factual
circumstances.
- 6.34 We continue
to think that it is appropriate for the law to address claims based on a
testamentary promise. The TPA has been an
established part of succession law in
Aotearoa New Zealand for several decades. We received little feedback during
consultation calling
for its repeal. Although the claim applies in niche
circumstances, it can provide a useful avenue of relief where a deceased ought
to have fulfilled their promise to remunerate someone who has provided work or
services.
- 6.35 Instead of
recommending a single, comprehensive cause of action, we therefore recommend
that a cause of action based on a testamentary
promise, as contemplated by the
TPA, be included in the new Act. This will allow the law to be modernised to
meet contemporary drafting
standards. It will also enable several issues with
the TPA to be addressed. We set out below what we consider an improved
testamentary
promise cause of action should look like. Other causes of action at
common law or equity arising from contributions made towards
a person who has
since died should continue to operate outside the new Act.
- 6.36 We
considered whether to recommend more fundamental changes to the improved
testamentary promise cause of action to better reflect
the concepts of utu,
whanaungatanga, whakapapa and mana. We have not done so for two main reasons.
First, there are important differences
between the idea of reciprocity that
underpins contribution claims in state law and the idea of reciprocity that
underpins utu, as
discussed above. We have concluded that further consideration
of, and consultation on, how these matters interact would be required.
Second,
we have not had the benefit of detailed consultation on whether a testamentary
promise cause of action responds to a policy
problem recognised in te ao
Māori and whether it would accord with tikanga. In these circumstances, we
have made no reference
to tikanga Māori in the improved testamentary
promise cause of action.
Including an improved testamentary promise cause of action
in the new Act
- 6.37 In
bringing the testamentary promise cause of action into the new Act, we recommend
that the law should remain substantially
the same as under the TPA. However, we
suggest several amendments for how the testamentary promise cause of action
might be improved
when restated in the new Act.
The cause of action in the new Act should conform to modern
drafting standards
- 6.38 The
TPA has not been substantively amended since 1961, and it was originally enacted
in 1944.420F[421] It is difficult
to read and does not conform to modern drafting standards. We therefore
recommend that the cause of action as redrafted
in the new Act accords with
modern drafting standards.
Elements of the cause of action
- 6.39 The
TPA has evolved over the course of its lifetime. The original reason for the
legislation was summarised in Parliamentary
debates when the Law Reform Act 1944
was introduced:[422]
- There is one
case, however, in which payment is irrecoverable — the case where one
person works for another in the expectation
of remuneration being made by will
... In such a case, there is no right whatever, unhappily, for the person
performing those services
to secure any remedy if the result is not forthcoming
... A person might work for a long time and render services, maybe over many
years, in the faith of that expectation, and yet be defeated in respect of it,
and have no remedy of any sort.
- 6.40 In 1949,
amendments removed the requirement that the promise be made before the services
or work are performed.422F[423] It
is not clear from the discussion of these amendments in Parliament why this
change was made, although case law has suggested that
the aim was to require a
deceased person to keep their word where that word may be taken to relate
expressly or by implication to
services given or to be
given.423F[424]
- 6.41 Owing to
the breadth of the circumstances in which the TPA applies, there is now some
difficulty in identifying with precision
the problem the legislation is aimed at
remedying. For instance, the primary concern is not solely to hold a deceased to
their word;
it is also necessary for the claimant to have performed work or
services. A promise made out of love or affection, for example, rather
than as a
reward for the claimant’s work or services will not give rise to
relief.424F[425] Yet, confusingly,
it is not necessary for the claimant to have been motivated by the
promise.425F[426] Indeed, the
promise may be made after the claimant provided the work or
services.426F[427] The TPA cannot,
therefore, be understood to be simply remedying the claimant’s reliance on
a promise.427F[428]
- 6.42 We think it
is desirable that the cause of action in the new Act is more precise in its
purpose. In our view, the objective should
be to hold a deceased to their
promise where they have received substantial work or services from another and
they have promised
to make testamentary provision for that person. Accordingly,
the elements of the cause of action in the new Act should be:
(a) the claimant has rendered services to or performed work for the deceased
during the deceased’s lifetime;
(b) the services or work must have been substantial in that they required the
claimant to contribute significant time, effort, money
or other property or to
suffer significant detriment;
(c) the claimant must not have been fully remunerated for the work or
services;
(d) the deceased expressly or impliedly promised to make provision in their will
for the claimant in return for the work or services;
and
(e) the deceased has failed to make the promised testamentary provision or
otherwise fully remunerate the claimant.
- 6.43 Many of
these elements are drawn from the existing case law. The main addition is that
the work or services must be substantial.
We recommend that the new Act is clear
that the only work or services that would justify a remedy are those that have
required the
claimant to contribute significant time, effort, money or other
property. The court would be required to make a finding in each case
as to
whether the requisite threshold has been met. We would expect the court to
follow the current case law where it gives a wide
interpretation to what
constitutes work or
services.428F[429] This includes
cases where the services take the form of the claimant having suffered detriment
rather than performing positive acts
towards the deceased.
- 6.44 Importantly,
the state of mind of the claimant remains largely irrelevant to the inquiry. We
think that is preferable given that
such inquiries pose difficult evidential
issues.429F[430] It also reflects
the reality that, when performing work or services for a person of older age,
especially if a family or whānau
member, a person’s motivations are
likely to be complex and
multifaceted.430F[431] We
therefore consider the primary emphasis of the cause of action should not be on
the claimant’s reliance on the promise but
rather the fact that they have
conferred considerable benefits on the deceased and, in promising to make
provision for the claimant,
the deceased has accepted the claimant deserves
reward.
- 6.45 We
recommend that a promise should continue to be construed liberally, that is, it
may be express or implied. We recognise that
the TPA allows for recovery in
situations where work or services have been performed over a long period of time
and often within
a close personal or familial setting. It may not always be
clear exactly when “any statement or representation of fact or
intention”
to reward the claimant was
made.431F[432] The court should
continue to be able to look at the facts in the round and make an assessment
about whether any representations had
in fact been made. The court should
continue to take a flexible approach to finding the promise relates to the work
or services,
including inferring the link from the circumstances if
necessary.432F[433] Concerns that
this approach will result in the courts granting awards too readily will be
mitigated by the requirement that the work
or services the claimant provided
involved a significant expenditure of time, effort, money or other
property.
The cause of action should not focus on what constitutes normal
family life
- 6.46 The
decision in Re Welch established that a claimant’s actions that are
the “natural incidents and consequences of life within a close family
group” do not constitute work or services for the purposes of the
TPA.433F[434] In order to
distinguish between work or services that are part of family life and those that
are not, the courts must undertake an
assessment of the “norm” and
assess whether the work or services go beyond that
norm.434F[435] We see several
problems with this approach:
(a) Within contemporary Aotearoa New Zealand there is a diverse range of family
arrangements and family dynamics. What is to be considered
“normal”
may be difficult to assess, meaning the law fails to provide predictable
outcomes.
(b) It is not clear from the cases whether the “normal incidents and
consequences” of family life should be measured
objectively or with
reference to the particular
family.435F[436] If the focus is
on the particular family, difficulties may arise as it is generally
unsatisfactory to have law that provides substantially
different outcomes based
on the differing norms of particular
families.436F[437] Conversely, a
norm that attempts to take families across Aotearoa New Zealand as a whole will
inevitably fail to recognise the diversity
of families and their dynamics.
(c) This approach may obscure the reality that, as noted above, a person’s
motivations are often complex and multifaceted.
Undertaking an exercise to
determine the “natural incidents and consequences” of any particular
family may detract from
what the deceased intended by their
promise.
- 6.47 Given these
issues, we recommend that the new Act should no longer invite the court to
assess a claimant’s work or services
by reference to whether they were
considered normal within a particular family setting. Rather, we think the
element discussed above
that the work or services involved a significant
expenditure of time, effort, money or other property provides a better and more
objective measure of whether the claimant’s actions justify
relief.
Quantum of awards
- 6.48 Section
3(1) of the TPA requires an award to be:
- ... of such
amount as may be reasonable, having regard to all the circumstances of the case,
including in particular the circumstances
in which the promise was made and the
services were rendered or the work was performed, the value of the services or
work, the value
of the testamentary provision promised, the amount of the
estate, and the nature and amounts of the claims of other persons in respect
of
the estate.
- 6.49 The Privy
Council in Re Welch, after noting the factors in section 3(1), held that
“whenever a claim to relief is made out under it the criterion as to the
relief to be granted is
reasonableness.”437F[438]
- 6.50 As
explained above, we consider the objective of the cause of action should be to
enforce a deceased’s promise when they
have received substantial work or
services from the claimant. It follows, in our view, that the starting point for
an award under
the new Act should be the amount that was promised to the
claimant by the deceased. That gives weight to the deceased’s appreciation
of the value of the
services.438F[439]
- 6.51 The court
should still be required, as it is under the current law, to qualify that amount
to what is reasonable in the circumstances.
The court would continue to take
into account the value of the services or work, the value of the testamentary
provision promised,
the amount of the estate and the nature and amounts of the
claims of other persons in respect of the estate. Because we suggest the
objective of the cause of action is to enforce the deceased’s promise, it
is arguable it is unnecessary to qualify an award
by what is reasonable in the
circumstances. However, we see the qualification as necessary because of the
problems with relying on
only one party’s evidence of the nature or amount
of the promise.
- 6.52 Our
recommendations differ from the current law, which aims only at reasonableness
when determining quantum, having regard to
the factors in section 3(1). We
prefer our approach as it is consistent with the objective of holding the
deceased to their word.
We anticipate that, in many cases, this change in
approach will not make much difference in practice as often the promise is
unquantified,
and the court will have to fall back on reasonableness as the
starting point for an award.
- 6.53 A court
would only make an award to the extent that a claimant’s work or services
have been unremunerated. In making that
assessment, the court should continue to
assess the reciprocal benefits the claimant has received from the
deceased.439F[440]
- 6.54 Lastly,
under the current law, the court cannot award more than the amount
promised.440F[441] We see this
limitation as too strict, especially given the inherently discretionary approach
to awards under the TPA and our suggested
requirement that the work or services
be substantial.441F[442] We
recommend that this upper limitation should be repealed so that a court is able
to award more than the amount promised if it considers
it appropriate.
Te Ture Whenua Maori Act 1993 and testamentary promises
- 6.55 Under
the current law, a court may redistribute interests in Māori freehold land
when making an award under the TPA provided
the order does not have the effect
of alienating any beneficial interests in the land to people who are not
eligible to succeed under
Te Ture Whenua Maori Act 1993
(TTWMA).442F[443] In Chapter 3, we
recommend that state succession law should have no application to taonga.
Instead, taonga should be dealt with consistently
with the tikanga of the
relevant whānau or hapū. As TTWMA recognises, Māori freehold land
is a taonga tuku iho. It
seems strange that the TPA overlays the regime
governing succession to Māori freehold land. The Government may wish to
consider
whether and, if so, how testamentary promise awards under the new Act
should apply to succession to Māori freehold
land.
CHAPTER 7
Intestacy entitlements
IN THIS CHAPTER,
WE CONSIDER:
- the statutory
rules for distributing intestate estates.
CURRENT LAW
- 7.1 Intestacy
occurs when the whole or part of the deceased’s estate is not disposed of
by will, even where an ōhākī
(an oral expression of testamentary
wishes within te ao Māori) has been made. This is because
ōhākī (which we
discuss in Chapter 16) are unrecognised by state
law. Total intestacy arises where the deceased makes no effective testamentary
disposition
of any of their property, such as where they left no will or their
will is invalid443F[444] or the
beneficiaries died before the deceased. Partial intestacy occurs where the
deceased fails to dispose of some of their property.
In this chapter, we use the
word “intestate” to describe a person who has died without having
made a valid will in respect
of some or all of their property.
- 7.2 Dying
intestate is relatively common in Aotearoa New Zealand. It is estimated that
around half of all adults (aged 18 or over)
do not have a
will.444F[445] Every year, around
one in 10 of the applications for administration filed with te Kōti Matua |
High Court (the High Court) is
for an intestate
estate.445F[446]
- 7.3 The total
administration applications filed with the High Court represent around half the
number of registered deaths each
year.446F[447] Those individuals
for whom an administration application is not filed probably leave estates that
do not require a formal grant of
administration in order to distribute the
assets of those estates.447F[448]
It is likely that a significant proportion of those individuals died intestate.
- 7.4 Certain
demographic groups are less likely to make wills. Rates of will-making are lower
in Māori, Pacific peoples and Asian
communities.448F[449] Will-making
is often associated with significant life events such as buying a home or having
a child. Rates of will-making also increase
with age so the intestate population
is generally expected to be younger than those who die with a
will.449F[450]
The intestacy rules
- 7.5 Section
77 of the Administration Act 1969 sets out the rules for distributing intestate
estates consisting of all property other
than whenua
Māori.450F[451] Broadly, the
rules prioritise the intestate’s partner and children, followed by
parents, siblings, grandparents, aunts and
uncles (by blood) and cousins. When
none of the specified family members are alive to succeed, the Crown will take
the estate as
bona vacantia (ownerless goods). The Crown may provide for
dependants of the intestate or other
persons451F[452] for whom the
intestate might reasonably have been expected to make provision. We summarise
the rules under section 77 in the following
diagram.452F[453]
SUMMARY OF THE DISTRIBUTION OF INTESTATE ESTATES UNDER SECTION
77 OF THE ADMINISTRATION ACT 1969
Surviving
partner?
Children or descendants?
No
No
Parents?
Children or descendants?
Children or their descendants take whole estate
Siblings or
their descendants (nieces,
nephews)?
Grandparents?
Aunts/uncles
or descendants (cousins)?
No
No
Partner takes:
- personal
chattels
- prescribed
amount ($155,000)
- one-third of
what remains
Children/descendants take the other two-thirds of what
remains
Yes
Yes
Yes
No
No
Parents?
Parents take whole estate
Siblings or their descendants take whole
estate
- Maternal
grandparents or descendants take half
- Paternal
grandparents or descendants take half
- Maternal
aunts/uncles or descendants take half
- Paternal
aunts/uncles or descendants take half
If no descendants on one
side of family, the other side takes whole estate
Everything passes to Crown
No
Partner takes:
- personal
chattels
- prescribed
amount ($155,000)
- two-thirds of
what remains
Parents take the other third of what remains
Yes
No
Yes
Yes
Yes
Yes
Partner takes whole estate
START
Intestacy rules for whenua Māori
- 7.6 There
are unique intestacy provisions in Te Ture Whenua Maori Act 1993 (TTWMA) that
apply to Māori freehold land. Section
109 provides that the persons
entitled to inherit upon intestacy are the intestate’s descendants,
siblings and their descendants.
Where the intestate is survived by children,
those children are entitled to equal shares. If any of the intestate’s
children
died prior to the intestate, leaving children, those children will take
their parent’s share in equal portions. This applies
to descendants
through all degrees. If the intestate leaves no descendants, the
intestate’s siblings will share the intestate’s
entitlement. This
will include half-siblings who also descend from the intestate’s parent or
other ascendant from whom they
were entitled to the Māori freehold land. If
there are no children or siblings, the living descendants of the person
“nearest
in the chain of title” will
succeed.453F[454]
- 7.7 A child who
is a whāngai may also have intestate succession rights under TTWMA if the
tikanga of the relevant iwi or hapū
determines that there is a relationship
of descent between the child and the child’s birth parents, “new
parents”
or both.454F[455]
These recent amendments to TTWMA represent a significant change to the position
of tamariki whāngai (whāngai children)
under
TTWMA.455F[456] Once a
relationship of descent is determined, the tamaiti whāngai (whāngai
child) will inherit an equal share as any other
child of the deceased.
ISSUES
- 7.8 The
intestacy provisions in the Administration Act are old. They consolidated the
regime established by the Administration Amendment
Act 1944, and there have been
few updates since 1969 when the Act was passed. Several issues
arise:
(a) The rules may not reflect contemporary public attitudes and expectations.
The Succession Survey results provided several examples
of where the current
regime may run counter to contemporary public attitudes and expectations. These
are discussed in the relevant
sections
below.456F[457]
(b) The rules have not been adjusted to accommodate the growing number of
blended families. The rules may need reform to account
for changes in family
arrangements, particularly increasing rates of repartnering and the associated
increase of blended families.
We discuss the extent of this issue when we
consider the position of step-relationships within the regime and the
distribution rules
between partners and children.
(c) The rules pre-date subsequent developments in relationship property law. In
particular, the intestacy regime pre-dates the Property
(Relationships) Act 1976
(PRA), and a surviving partner’s entitlements on intestacy are not
quantified in terms of their relationship
property rights. We discuss this issue
in the context of the objectives of the intestacy regime, the qualifying
criteria for certain
relationships and the distribution to partners.
(d) The intestacy provisions and the Administration Act generally are framed in
outdated and inaccessible language. Long, unbroken
sentences457F[458] and uncommon
terms and phrases such as “issue” and “absolutely vested
interest” make the provisions difficult
to comprehend.
- 7.9 Additionally,
the state law does not facilitate the exercise of tino rangatiratanga, including
the exercise of tikanga Māori.
As a prescribed default system of
distribution, the intestacy rules do not reflect the context-specific nature of
tikanga. Certain
relationships, such as whāngai and customary Māori
marriage, are not independently recognised in the current state law.
Tikanga may
reveal a different basis on which entitlements should be based and therefore
have different priorities than those in
current state law.
RESULTS OF CONSULTATION
- 7.10 We
received many submissions regarding intestacy on both the consultation website
and the Issues Paper. In this chapter, we discuss
the results of the
consultation within each of the sections below.
CONCLUSIONS
- 7.11 We
make several recommendations to reform the intestacy regime. We discuss each
recommendation separately under the sections
below. We have included a diagram
at the end of this chapter that illustrates how our recommendations for reform
of the intestacy
regime would work.
Objectives of the intestacy regime
- 7.12 The
intestacy rules are designed to reflect what most people who die intestate would
do with their estate had they made a
will.458F[459]
- 7.13 Overseas
law reform bodies have used various methods to identify what is the most common
approach to distributing assets on death,
including analysing wills proved,
conducting public surveys and consulting with members of the legal profession
and public. In addition
to our initial discussions with practitioners and
professional trustee corporations, we have used the Succession Survey and the
results
of our consultation to give us insight into contemporary attitudes about
fair distributions where there is no will.
- 7.14 Nonetheless,
the intestacy rules will not always produce what the intestate or their family
members would view as the fairest
outcome. State law allows the deceased to
determine what they would see as a fair outcome by providing their intentions in
a will.
The law also facilitates a redistribution in certain circumstances,
through court awards under the PRA, Family Protection Act 1955
(FPA) and Law
Reform (Testamentary Promises) Act 1949 (TPA).
- 7.15 Most
submitters to the Issues Paper did not raise any concerns with the intestacy
regime’s objective. Notably, however,
Te Kāhui Ture o Aotearoa | New
Zealand Law Society (NZLS) cautioned against seeking to produce intestacy law
that determines
what most intestate people would have done had they made a
will:
- Human behaviour
and choices are not always predictable. Rather, provision for intestacies should
involve what the state considers
to be the fairest default provisions, in the
absence of testamentary directions. The state, through this review process,
distils
from various sources what are the appropriate values, rather than second
guessing what most intestate people would have done.
- 7.16 NZLS makes
an important point. However, it remains likely in our view that understanding
what most intestate people would have
done had they made a will is inextricably
linked to society’s notions of what are the fairest default provisions.
Generally,
people who make wills choose to leave their estate to their family.
- 7.17 In addition
to this overarching objective, there are other objectives that we consider
should underpin the regime:
(a) The rules should be simple to understand and efficient to implement. People
should know what will happen to their property if
they die without a will.
Beneficiaries in an intestacy ought to be able to consult the regime to
understand their entitlements. This
is particularly important given that
individuals eligible to be administrators of the estate are beneficiaries and
are unlikely to
be professional executors.
(b) The regime should be consistent with the other rights and entitlements
family members might have under the new Act, for example
a surviving
partner’s entitlement to relationship property. It would be unhelpful if
the intestacy entitlements for surviving
partners were commonly less than their
relationship property rights, resulting in applications to divide relationship
property.
- 7.18 The
recommendations for reform we set out below assume that a partially intestate
estate (that is, the part of the estate that
is intestate) should be distributed
according to the same rules as a wholly intestate estate.
- 7.19 Additionally,
as recommended in Chapter 2, the intestacy regime should remain in the
Administration Act at present, but Part
3 of that Act should be repealed and new
intestacy provisions enacted that conform to modern drafting
standards.459F[460] We refer to
these as “new intestacy provisions” or “new
provisions”.
- 7.20 Finally, as
under the current law, a beneficiary in an intestacy should retain rights to
make a relationship property, family
provision or testamentary promise claim
where they are otherwise entitled to make such claims.
Ngā tikanga
- 7.21 The
intestacy regime operates as a default distribution of property where the
deceased left no valid will according to state
law. The process of determining
what is tika in the context of succession in te ao Māori generally involves
collective debate
and decision-making amongst the whānau. In the Issues
Paper, we therefore asked whether tikanga would support a default system
of
distribution.
- 7.22 We also
commented that there were no statistically significant differences between
Māori and non-Māori to the various
intestacy scenarios posed in the
Succession Survey. We asked submitters for their feedback on whether tikanga
might reveal a different
basis on which entitlements should be based and whether
different classes of people should be included or excluded. As we discuss
in
Chapter 5 regarding family provision, whānau is central in tikanga
Māori and involves certain rights and obligations.
Results of consultation
- 7.23 Several
submitters to the Issues Paper addressed some or all of our questions regarding
tikanga and intestacy: Te Hunga Rōia
Māori o Aotearoa (THRMOA),
Ngā Rangahautira, Public Trust, NZLS, the Family Law Committee of Auckland
District Law Society
(ADLS), Chapman Tripp, MinterEllisonRuddWatts, Te Kani
Williams, and Michael Reason and Azania Watene in a joint submission.
- 7.24 Chapman
Tripp submitted that the general objective of the intestacy regime may not align
with an ao Māori view:
- The general
proposition that the intestacy regime should be designed to replicate what most
intestate people would have done had
they made a will does not fully align with
tikanga because it gives supremacy to the individual’s wishes, without
taking into
account how to balance those wishes with obligations to the
collective derived from whakapapa and whanaungatanga — values that
guide
whānau by imposing a collective lens, which are often determinative in Te
Ao Māori.
- 7.25 We asked
submitters how tikanga responds to a situation where someone dies without
expressing any testamentary wishes. THRMOA
emphasised that discussion and the
ability for kōrero is an essential aspect of tikanga. They submitted that
pakeke (adults)
in the whānau with the requisite mana would decide or run a
process that allows for wider whānau to be heard before a decision
is made.
Chapman Tripp expressed similar views:
- Mā te
whānau e whakatau — the relevant whānau ought to discuss and
come to a consensus as to how the estate
should be divided in the absence of any
ōhāki or other expression of testamentary wishes. If there is no
consensus, a tikanga-based
resolution process, guided by a pūkenga, would
take place. Other interested parties (kin and non-kin), where relevant, would
also be provided an opportunity to express their whakaaro (thoughts) and
participate in the process.
- 7.26 THRMOA,
Ngā Rangahautira and Chapman Tripp agreed that tikanga Māori does not
support a default system of distribution
such as that provided for in the
Administration Act. THRMOA submitted that tikanga is context specific and
therefore it requires
parties to come together to kōrero. Chapman Tripp
said tikanga lives through people and actions.
- 7.27 THRMOA
further submitted that “there is a legitimate Māori interest in
certainty in application of law” and
“it is important for
individuals subject to law (tikanga or otherwise) to understand it and its
potential outcomes”.
THRMOA agreed that intestacy regimes should attempt
to replicate what most people would do if they had made a will, subject to the
categories of land and taonga, where individual freedom must be subject to
obligations arising from whakapapa and whānau considerations.
- 7.28 Williams
submitted that tikanga should apply before the imposition of state law. He also
noted the importance of having a resolution
process available to bring matters
to a conclusion.
- 7.29 MinterEllisonRuddWatts
submitted that, at this point in time, the intestacy regime should not actively
oppose tikanga or prevent
Māori from dealing with their property in
accordance with the applicable tikanga. Over time, it would be positive to
evolve
the system into one that actively promotes succession in accordance with
tikanga for those who want this.
- 7.30 Ngā
Rangahautira cautioned against further assimilation of tikanga Māori within
the colonial law foundation of Aotearoa
New Zealand. In their view, the
Commission can help avoid this by recognising Māori tino rangatiratanga and
mana motuhake and
creating a platform for Māori to lead how tikanga
Māori should shape an intestacy regime. Ngā Rangahautira emphasised
the need for consultation with iwi, hapū and whānau to ensure the
regime “does not become subject to the assumption
of Pākehā law
supremacy”. Several other submitters emphasised the need for consultation
with Māori.
- 7.31 Several
submitters commented on specific aspects of the current intestacy rules in state
law, and these are referred to in the
relevant sections below.
Conclusions
- 7.32 While
we recognise tikanga may provide a different outcome than the default rules when
distributing an intestate estate, in this
Report we do not recommend an entirely
separate system governed by tikanga. As noted by submitters, further
consultation would be
required and Māori would need to take an active role
in leading the design of the regime. We agree with THRMOA that it is important
that individuals subject to any law understand it and its potential outcomes.
This becomes particularly relevant for those who have
not been subject to
tikanga before but may be under any new proposed regime. Issues would
arise about who would be subject to such a regime and how it would interact with
state law, as discussed in Chapter 2.
Nor do we recommend express recognition of
Māori customary marriage, for the reasons discussed in Chapter 4.
- 7.33 Instead, at
this stage, we think that exercising kāwanatanga in a responsible manner
and facilitating tino rangatiratanga
in relation to the intestacy regime can be
implemented in four respects.
(a) As recommended in Chapter 3, taonga should be excluded from distribution
under the intestacy regime and instead dealt with in
accordance with
tikanga.
(b) We recommend that tikanga should operate in respect of whether people in
whāngai relationships may succeed in an intestacy
(discussed below).
(c) In Chapter 13, we emphasise measures to help whānau resolve matters in
accordance with tikanga. That could mean that, through
kōrero, a
whānau could decide how a family member’s intestate estate is to be
distributed, which may be different
from the rules in the intestacy regime.
(d) Certain whānau members could bring relationship property and family
provision claims against an intestate estate in some
circumstances. As we
explain in Chapters 4 and 5, we consider the claims address situations where we
would expect tikanga to ensure
adequate provision is made for those whānau
members.
- 7.34 Lastly, we
are mindful that, while tikanga does not rest on a default system of rules, many
Māori may see value in the certainty
the intestacy regime can provide. A
separate tikanga-based approach to intestacy could be established in the future.
Our recommendations
in this Report reflect our view as to what can be achieved
at the present time.
Classes of parent-child relationships
RECOMMENDATIONS
R30
Individuals considered by law to be the children of the deceased should
remain eligible to succeed in an intestacy.
R31
Stepchildren and other classes of children for whom the deceased accepted
parental responsibilities (other than whāngai) should
remain ineligible to
succeed in an intestacy.
R32
Where there is no adoption under the Adoption Act 1955, the eligibility of
people in whāngai relationships to succeed in an intestacy
should be
determined according to the tikanga of the relevant whānau. The share of
the estate that the individual will receive
should be determined according to
the default intestacy rules.
The Government should consider the effect that adoption under the Adoption
Act should have on the intestate succession rights of people
in whāngai
relationships where there has been an adoption under state law. Until that time,
the rights of the individuals to
inherit in an intestacy should continue to be
determined according to state law where a tamaiti whāngai has been adopted
under
the Adoption Act.
R33
Children in utero at the time of the deceased’s death who are later
born alive should continue to be eligible to succeed in
an intestacy, and
children born from posthumous reproduction should continue to be ineligible to
succeed in an intestacy.
- 7.35 What
parent-child relationships should be recognised under the intestacy regime is
relevant to several aspects of intestate succession.
In the first instance, it
is important to determine which individuals should be considered to be children
of the intestate. More
broadly, however, parent-child relationships will be
relevant to other types of family relationships, such as whether the deceased
was in a sibling relationship or a grandparent-grandchild relationship. The
following sections set out our conclusions as to which
relationships should be
recognised in the intestacy regime.
Birth children and children adopted under the Adoption
Act
- 7.36 We
recommend that children considered by law to be the deceased’s children,
being birth children460F[461] and
children the deceased formally adopted in accordance with the Adoption Act 1955,
should remain eligible to succeed in an intestacy.
Apart from instances where an
adopted child is a tamaiti whāngai of the deceased, we have heard no
concerns about this aspect
of the law. Te Tāhū o te Ture | Ministry of
Justice (the Ministry of Justice) is currently reviewing the law of adoption
in
Aotearoa New Zealand, and this includes consideration of the inheritance rights
for formally and informally adopted
children.461F[462]
Step-relationships
- 7.37 Information
about repartnering in Aotearoa New Zealand is limited. Since the 1980s,
remarriages have made up approximately one-third
of total marriages each year
(28 per cent in 2019). This proportion has increased since the 1970s (in 1971,
16 per cent of marriages
were remarriages). Statistics on remarriages do not
capture people who divorce and then enter a de facto
relationship.462F[463] Blended
families also appear to be quite common, with one study indicating that one in
five children had lived in a stepfamily before
age
17.463F[464]
- 7.38 In the
Issues Paper, we took the preliminary view that stepchildren and other classes
of children for whom the deceased may have
accepted parental responsibilities
(“accepted children”, as discussed in Chapter 5) should remain
excluded from the intestacy
regime. We also proposed that the intestacy rules
should not be extended to include guardians or other parental figures. We
discuss
whāngai relationships below.
Results of consultation
- 7.39 In
their submissions on the Issues Paper regarding stepchildren, ADLS, Succeed
Legal and Jan McCartney QC supported our proposals
regarding stepchildren.
Succeed Legal said that including other classes of parent-child relationships
beyond biological and adopted
children would make administration complicated and
it is not the role of the intestacy regime to respond to such situations. NZLS,
however, submitted that the definition of children should be better defined to
encompass stepchildren, whāngai and children
born out of fertility
processes and posthumous reproduction.
Conclusions
- 7.40 We
recommend that stepchildren and other classes of accepted children should remain
excluded from the intestacy regime.
- 7.41 Although we
recognise that the deceased may have wished to provide for these accepted
children, extending the definition of child
or descendant would overcomplicate
the law, create practical uncertainties and establish an unreasonable
responsibility for
administrators.464F[465]
Administrators may be required to undertake complicated factual analyses about
the nature of the child’s relationship with
the deceased. It may have the
unintended result of encouraging rather than dissuading claims against the
estate. Where the surviving
family are all in agreement that a parent-child
relationship existed, they may have no trouble accepting that the child should
also
share in the estate, but where there is disagreement about that
relationship, conflict is likely to arise. It would also be generally
inconsistent with whakapapa to include accepted children, and this may not be
justifiable outside of certain recognised whāngai
relationships.
- 7.42 At times,
this approach will produce seemingly unfair results, such as where one of the
child’s biological parents died
when the child was very young and a
stepparent assumed the place of that biological parent. In the Succession
Survey, 57 per cent
of respondents stated that the deceased’s estate
should be split evenly between two adult children from the deceased’s
first marriage and two adult
stepchildren.465F[466] However, we
do not think the intestacy regime should respond to such situations. Because the
dynamics of stepfamilies are likely
to be so diverse, we do not think the
intestacy regime should make assumptions about the nature of the relationship
between stepparents
and stepchildren. Preferably, the deceased would have made a
will that suits their family circumstances. We discuss in Chapter 16
our
recommendations for educating the public on the importance of will-making. In
the absence of a will, families can agree to share
the estate differently to the
intestacy rules and, in certain circumstances, a stepchild child may be eligible
to make a claim for
a family provision
award.466F[467]
- 7.43 Correspondingly,
we consider that there should not be any extension of the intestacy rules to
provide for guardians or other
parental figures.
Whāngai
- 7.44 We
discuss in Chapter 5 the customary Māori practice of whāngai where a
child is raised by someone other than their
birth parents, usually another
relative from the same whakapapa. In that chapter, we explain that the practice
of whāngai is
firmly rooted in whanaungatanga. It can be a technique for
cementing ties among whānau and hapū or for maintaining whakapapa
knowledge, tikanga, kawa and tradition.
- 7.45 The
intestacy regime in the Administration Act does not contemplate whāngai.
- 7.46 The right
of whāngai to succeed according to tikanga varies amongst whānau,
hapū and iwi. We have heard from Māori
that it would not be
appropriate for tamariki whāngai to always be entitled to succeed from
their matua whāngai (whāngai
parent) on intestacy alongside any
children who are considered by law to be the children of the deceased. This is
because tikanga
concerning whāngai arrangements differs among whānau
and hapū. Whether a whāngai should be entitled to succeed
according to
tikanga is highly contextual and would depend on a range of factors. There may
be an expectation that a tamaiti whāngai
will receive a share of the estate
of the matua whāngai or the birth parents’ estates or both. If
whāngai were excluded
from the intestacy regime, their position would be
the same as other accepted children under our recommendations. That is, in the
absence of a will, they may reach an agreement with surviving whānau
members or claim a family provision
award.467F[468]
Results of consultation
- 7.47 Most
submitters who commented on the eligibility of whāngai to succeed in
intestacy supported the option of allowing provision
for whāngai depending
on the tikanga of the relevant whānau or hapū. These were THRMOA,
Ngā Rangahautira, Public
Trust, NZLS, Te Kani Williams, Chapman Tripp, TGT
Legal, Jan McCartney QC, and Michael Reason and Azania
Watene.468F[469] THRMOA and
Chapman Tripp suggested that the amount provided should also be determined
according to the tikanga of the relevant whānau.
- 7.48 Several
submitters commented on the key role that whāngai play in te ao Māori
– that they are wanted or chosen
in contrast to commonly held views around
Pākehā adoption. Ngā Rangahautira submitted that the exclusion of
whāngai
from the intestacy regime does not give weight to the strength of
the role whāngai children play.
- 7.49 Submitters
also commented on the traditional and common scenario where whāngai are
part of the whānau in that they
have a whakapapa connection. In such cases,
they said, whāngai have rights to succeed subject to the same
considerations that
apply to all whānau, the shared whakapapa giving rise
to clear whanaungatanga obligations owed to them. In the rarer circumstances
where whāngai are not from the whānau and do not have a whakapapa
connection, THRMOA and Chapman Tripp agreed that there
will still be obligations
to that child. The principles of manaakitanga and aroha require a commitment to
care for that child.
- 7.50 TGT Legal
suggested that the new intestacy provisions might provide a mechanism to enable
the relevant whānau or hapū
of the deceased to reach consensus on
distribution and failure to do so would result in an arbiter making a
determination (as in
TTWMA).
- 7.51 Public
Trust also noted that the practice of informal adoption is customary among other
ethnic groups in Aotearoa New Zealand,
including Pacific Island nations.
Conclusions
- 7.52 We
recommend that, where a tamaiti whāngai has not been adopted under the
Adoption Act 1955, tikanga should determine whether
or not the intestacy regime
should be applied to the family members affected by the whāngai
relationship. We recommend that
a person’s standing to succeed as a
certain family member in relation to the whāngai relationship be determined
by the
tikanga of the relevant whānau. This would mean that the share of
the estate that the individual will receive is determined
according to the
default intestacy rules.
- 7.53 For
example, where there is no adoption under the Adoption Act, we recommend that
tikanga of the relevant whānau should
determine:
(a) the eligibility of a tamaiti whāngai to succeed as “child”
to the intestate estate of their matua whāngai;
(b) the eligibility of a tamaiti whāngai to succeed as “child”
to the intestate estate of their birth parent;
(c) the eligibility of a matua whāngai to succeed as “parent”
to the intestate estate of their tamaiti whāngai;
(d) the eligibility of a birth parent to succeed as “parent” to the
intestate estate of their child who is a tamaiti
whāngai of a matua
whāngai; and
(e) the eligibility of a tamaiti whāngai to succeed as
“sibling” of the intestate, or the eligibility of an individual
to
succeed as “sibling” to an intestate tamaiti
whāngai.
- 7.54 We
recommend that the Government should consider the effect that adoption under the
Adoption Act should have on the intestate
succession rights of whāngai
where there has been an adoption under state law. While this consideration is
ongoing, we recommend
a continuation of the status quo. Thus, where the tamaiti
whāngai has also been legally adopted according to the Adoption Act,
we
recommend that:
(a) the adopted child should be eligible to succeed as “child” to
the intestate estate of their adoptive parent;
(b) the adopted child should be ineligible to succeed as “child” to
the intestate estate of their birth parent;
(c) the adoptive parent should be eligible to succeed as “parent” of
the adopted child;
(d) the birth parent should be ineligible to succeed as “parent” of
the adopted child; and
(e) the adopted siblings should be eligible succeed as “siblings”
and birth siblings should not be eligible to succeed.
- 7.55 Under our
recommendations, it would not be the mere existence of a whāngai
relationship that would be determined by tikanga
but whether that whāngai
relationship should create succession rights. The discretion provides
flexibility to consider the circumstances
of each whāngai relationship,
which might include consideration of the reasons why the child became a
whāngai, the duration
of the whāngai relationship, the presence or
absence of a whakapapa connection and the appropriate tikanga in a whānau
to reach outcomes that reflect those differences. The flexibility is also
important to protect against an individual succeeding under
the intestacy regime
from multiple people where that would not be tika for the whānau involved.
- 7.56 Introducing
whāngai relationships into the intestacy regime will reduce certainty
within the distribution of some intestate
estates. We consider the importance of
acknowledging whāngai where that is what the tikanga of the relevant
whānau provides
outweighs any difficulties this may cause to the efficient
administration of an estate, and this is what we heard from submitters.
Requiring that the share received by the individual continues to be determined
according to the new intestacy provisions will alleviate
disputes occurring
about the amount of each individual’s entitlement. However, disputes may
arise about the eligibility of
a person in a whāngai relationship to
succeed. Under current law, the High Court has jurisdiction over whether someone
is eligible
to receive an entitlement under the intestacy
rules.469F[470] As discussed in
Chapter 11, we consider it would be appropriate to enable the Family Court to
have concurrent jurisdiction over whether
a person was in an eligible
whāngai relationship, noting that the Family Court would have jurisdiction
over this issue in a
family provision claim. In that Chapter, we also discuss
the potential role of the Māori Land Court in determining such questions,
while in Chapter 13 we discuss the out-of-court resolution of disputes.
- 7.57 Each
individual should have the ability to succeed only as one category of eligible
family members in a single intestacy. For
example, where the intestate is a
grandparent who was the matua whāngai of their grandchild and tikanga
determines that the
tamaiti whāngai is eligible to succeed as a
“child” of the intestate under the intestacy rules, they should not
also be eligible to succeed as a “grandchild” of the intestate.
- 7.58 We heard
very little in our consultation about the implications for succession in
relation to customary practices of caring for
a child other than a birth child
undertaken by other ethnic groups in Aotearoa New Zealand. The Government is
considering customary
adoption in its review of adoption laws and may wish to
specifically address succession in that
context.470F[471]
Unborn children
- 7.59 In
Chapter 5, we discuss posthumous reproduction, which refers to children born
from gametes (sperm or ova) or embryos collected
and stored prior to a
person’s death or, less commonly, from gametes collected shortly after
death.
- 7.60 The
Administration Act does not contemplate posthumous reproduction. Section 2(1) of
that Act provides that a child living at
the death of any person includes a
child who is conceived but not born at the death but who is subsequently born
alive. The law therefore
allows children in utero who are later born alive to
succeed on intestacy.471F[472]
- 7.61 Neither is
posthumous reproduction specifically contemplated in the Status of Children Act
1969. For example, section 5 of the
Status of Children Act provides that a child
born to a woman within 10 months after the marriage has been dissolved by death
is presumed
to be the child of that woman and the former husband. The status of
a child born from posthumous reproduction will instead be governed
by Part 2 of
the Status of Children Act, which governs the status of children conceived as a
result of assisted human reproduction
procedures, and the deceased who produced
the ovum or sperm will be considered a donor rather than the legal parent of the
child.
- 7.62 In the
Issues Paper, we proposed two reform options for consideration if posthumous
reproduction is enabled through revised Advisory
Committee on Assisted
Reproductive Technology (ACART)
guidelines:472F[473]
(a) Retain the current law, which has the effect of excluding children born from
posthumous reproduction.
(b) Amend the law to include children born from posthumous reproduction provided
that the child is in utero within 12 months from
the grant of administration of
the estate unless this time period has been extended by the
court.
Results of consultation regarding posthumous
reproduction
- 7.63 Several
submissions addressed the topic of posthumous reproduction.
- 7.64 Two
submitters, MinterEllisonRuddWatts and Chapman Tripp, favoured retaining the
current law excluding children born from posthumous
reproduction (Option One)
because of the risk that the class could be indefinite and because it would not
be in contemplation of
the deceased (or they would have made specific
provision).
- 7.65 Three
submitters favoured Option Two: Public Trust, TGT Legal, and Michael Reason and
Azania Watene in their joint submission.
The submitters noted that the proposed
reform would support the rights and best interests of children born from
posthumous reproduction
and, where there is evidence of consent to the
pregnancy, it would most likely align with the intent of the deceased to provide
for
that child.
- 7.66 Two further
submitters, Perpetual Guardian and ADLS, agreed that children conceived prior to
death and in utero should be eligible
to succeed but were unsure about what
should occur in respect of the more complex situation where children are born
from posthumous
reproduction.
Conclusions
- 7.67 We
recommend that:
(a) children in utero at the time of the deceased’s death who are later
born alive should continue to be eligible to succeed
in an intestacy; and
(b) children born from posthumous reproduction should continue to be ineligible
to succeed in an intestacy.
- 7.68 In
principle, we support children born from posthumous reproduction being eligible
to succeed from a parent. We consider this
would be in the best interests of
such a child, it would recognise that a child born from posthumous reproduction
retains their whakapapa
connection and it would avoid treating children
differently based on the way they came into the
world.[474] 3FHowever, the default
intestacy rules need to be simple and certain for those that need to apply them,
and they should lead to the
efficient and expeditious administration of an
estate.
- 7.69 In the
Issues Paper, we explained that, in order to balance the rights of other
entitled family members and to facilitate timely
distribution of an intestate
estate, there should be a time limit for when the child must be in utero. We
proposed 12 months from
the grant of administration in Aotearoa New Zealand,
which would align with the proposed limitation periods for making a claim
against
the estate under the new Act.
- 7.70 On further
consideration, we conclude that it is unlikely that a child conceived
posthumously will be in utero within 12 months
of the grant of administration.
Posthumous reproduction is likely to require approval from the Ethics Committee
on Assisted Reproductive
Technology
(ECART),474F[475] and the number
of applications ECART can consider each year is
limited.[476] Therefore the time
limit would need to be longer than that proposed to meaningfully include
children born from posthumous reproduction,
increasing the delay for
distributing those estates without certainty that a child will be
born.476F[477] Furthermore, some
children will not be caught by a longer time limit, and it may be more
justifiable to continue the current rule
requiring unborn children to be in
utero at the time of death than to impose a later arbitrary time after the grant
of administration
in which a child must be in utero.
- 7.71 We also
expect that legal advice will form part of the processes around gamete retrieval
and posthumous use, and that will include
advice around updating wills. ACART
has proposed that, when considering an application for ethics approval, ECART
must be satisfied
that the intending parent(s) have been encouraged to obtain
independent legal advice, including advice on the implications for inheritance
rights.477F[478]
- 7.72 Finally,
under our recommendations, where the intending parent was the intestate’s
partner and the intestate had no child
from a different relationship, the
partner will inherit everything
anyway.478F[479] In all other
situations, the intending parent should be taken to have made the decision
cognisant of the fact that the child would
not have any right to inherit from
the intestate parent.
- 7.73 Legal
parenthood laws in Aotearoa New Zealand are not fit for purpose, and the absence
of any consideration of posthumous reproduction
in the Status of Children Act is
one example of this.479F[480]
While we are not proposing a change to the intestacy rules to provide for
posthumous reproduction, the current laws may affect a
posthumously conceived
child’s rights when there is a will in place but that will provides for
the deceased’s “children”
and the deceased was deemed not to
be the parent of the posthumously conceived
child.480F[481] The Government may
wish to give further consideration to the current laws on legal parenthood in
relation to children born from posthumous
reproduction.481F[482]
Defining “issue”
RECOMMENDATION
R34
The term “descendants” should be used in the new intestacy
provisions in place of the term “issue.”
- 7.74 The current
law uses the term “issue” but does not define
it.482F[483] In the Issues Paper,
we suggested our preference for replacing this with the better-understood term
“descendants”.
- 7.75 Public
Trust, NZLS, Morris Legal and Chris Kelly all generally agreed in their
submissions that the term “issue”
is outdated and that descendants
or lineal descendants would be preferable. NZLS did note, however, that it would
be more accessible
to simply use “children”. Michael Reason and
Azania Watene noted in their joint submission that the term
“descendants”
is also inaccessible to the average lay reader.
- 7.76 The primary
goal when replacing the term issue should be to make the intestacy regime easier
to understand. We recommend that
the new provisions use the term
“children” wherever possible and refer to the term
“descendants” where the
context makes it necessary. It should be
made clear in the legislation that the next generation will only inherit where
their parent
was eligible to take an absolute interest but did not survive the
deceased. As explained above, the terms “children”
and
“descendants” should not be defined to include step relationships
and children born from posthumous reproduction
but should include whāngai
when the tikanga of the relevant whānau determines that they should be
included.
Defining “personal chattels”
RECOMMENDATIONS
R35
The definition of personal chattels used in the new intestacy provisions
should be amended to be consistent with the definition of
family chattels in the
PRA, including the recommended change in the PRA review, so that the definition
is amended to refer to those
items “used wholly or principally for family
purposes” (see R11 in the PRA review).
R36
Heirlooms and items of special significance should not be expressly excluded
from the definition of family chattels in an intestacy.
- 7.77 Under the
current law, the intestate’s surviving partner is entitled to receive the
intestate’s “personal chattels”.
The Administration Act
defines personal chattels, in relation to any person who has died, to
mean:483F[484]
- all vehicles,
boats, and aircraft and their accessories, garden effects, horses, stable
furniture and effects, domestic animals,
plate, plated articles, linen, china,
glass, books, pictures, prints, furniture, jewellery, articles of household or
personal use
or ornament, musical and scientific instruments and apparatus,
wines, liquors, and consumable stores, which immediately before his
or her death
were owned by him or her or in which immediately before his or her death he or
she had an interest as debtor under a
security interest as defined in the
Personal Property Securities Act 1999, or as purchaser under a hire purchase
agreement; but does
not include any chattels used exclusively or principally at
the death of the deceased for business purposes or money or securities
for
money
- 7.78 We conclude
that a surviving partner should remain entitled to certain items, as we explain
further below. However, the current
definition of personal chattels is outdated.
- 7.79 In the
Issues Paper, we proposed that the definition of personal chattels should be
modernised with reference to the definition
of “family chattels” in
the PRA as amended in accordance with our recommendations in the PRA
review.484F[485] We expressed our
preference for the definition to expressly exclude taonga and proposed the
possibility of also expressly excluding
heirlooms. However, we took a
preliminary view that items of special significance to the deceased should not
be excluded from the
definition.
Results of consultation
- 7.80 All
submissions addressing the definition of personal chattels agreed that the
definition needed to be modernised. Public Trust,
NZLS, ADLS, Succeed Legal and
Morris Legal expressed their support for amending the definition to accord with
the definition of family
chattels in the PRA. Several submitters also said that
taonga should be expressly excluded from the definition.
- 7.81 NZLS
submitted that heirlooms should also be excluded from the definition, in line
with the PRA. Succeed Legal commented that,
where a deceased left a will, a
personal representative is often left with the responsibility of dividing and
determining assets
between beneficiaries and therefore it is not of significant
hardship to require an administrator to make a similar determination
regarding
an heirloom under intestacy. However, they would also support continuing the
current law, which does not expressly exclude
heirlooms.
Conclusions
- 7.82 We
recommend that “personal chattels” in the Administration Act is
replaced by “family chattels”, which
would mean chattels of the
following kind owned by the intestate and used wholly or principally for family
purposes:
(a) household furniture;
(b) household appliances, effects, or equipment;
(c) articles of household or family use or amenity or of household ornament,
including tools, garden effects and equipment;
(d) motor vehicles, caravans, trailers, or boats and accessories of any of these
items; and
(e) household pets.
- 7.83 It would
include any of these chattels purchased under a hire purchase or conditional
sale agreement or an agreement for lease
or
hire.485F[486]
- 7.84 However, it
would exclude:
(a) chattels used wholly or principally for business purposes; and
(b) money or securities for money.
- 7.85 As we
recommend in Chapter 3 that taonga should be excluded from automatic
distribution according to state succession law, it
is not necessary to expressly
exclude taonga from the definition of family chattels.
- 7.86 We
recommend that there is no express exclusion for heirlooms in the definition of
family chattels in intestacy.
- 7.87 In the PRA
context, the courts have explained that an heirloom is an item of particular
importance that is passed down from one
generation to another in accordance with
some special family
custom.486F[487] There are good
reasons both for and against specifically excluding heirlooms from the
definition of family chattels.
- 7.88 In favour
of expressly excluding heirlooms is that situations may arise where the
intestate’s children are devastated that
an heirloom passes to the
surviving partner. It may also contradict the intestate’s intentions.
Excluding heirlooms from the
definition of family chattels would mean that these
do not automatically pass to the surviving partner, and an administrator will
then be required to value and distribute the heirlooms between the surviving
partner and other family members. This also improves
consistency with the PRA,
which was supported by most of the few submissions we received on this
point.
- 7.89 However,
there are also good grounds for no express exclusion of heirlooms. First, we
have not heard in our consultation that
the absence of an express exclusion
causes problems in practice. Second, in comparable jurisdictions that define
certain chattels
that a surviving partner takes in intestacy, it is uncommon for
heirlooms to be expressly excluded from that
definition.487F[488] Third, it may
be onerous to require an administrator to determine whether an item was an
heirloom (although a personal representative
is often left with the
responsibility of dividing and determining assets between beneficiaries so, in
many cases, this additional
exercise may be of little
consequence).488F[489]
- 7.90 We have
concluded that there is not a policy problem that warrants reform. We would hope
that, in most cases, family could come
to a negotiated solution about who should
take possession of an heirloom. We also note that, where a person is in
possession of heirlooms
and has a preference about what should happen to those
heirlooms when they die, that person should be encouraged to make a will.
- 7.91 In the PRA
review, the Commission recommended that items of special significance should be
expressly excluded from the definition
of family
chattels.489F[490] This would
include items that have special meaning to a partner and are irreplaceable in
that a similar substitute item or its monetary
value would be an insufficient
replacement.490F[491] We do not
propose that this exception is made to the definition of family chattels in the
intestacy rules. One of the purposes of
distinguishing personal chattels from
other property is to reduce conflict over the succession of particular items.
Carving out items
of special significance to the intestate might undermine this
benefit and, unlike heirlooms, an item of special significance to the
intestate
may not be significant to the intestate’s children or may be significant
to the intestate’s partner.
- 7.92 Where the
intestate is survived by a partner and descendants, the surviving partner should
continue to be entitled to the intestate’s
family chattels based on the
amended definition set out above. This approach will discourage conflict over
ownership of the items
and help to avoid delay for administrators. We also
anticipate that the intestate’s partner will have depended on several of
the items for day-to-day living. A surviving partner’s entitlement to the
family chattels should cause less disruption for
the surviving partner than if
the chattels were to be sold or distributed to other beneficiaries.
Qualifying relationships
RECOMMENDATIONS
R37
The same criteria that qualify a partner for relationship property
entitlements (R11–R14) should apply to qualify a partner
to succeed in an
intestacy.
R38
Separated surviving partners should remain eligible to succeed in an
intestacy provided no more than two years have elapsed since
the surviving
partner and the intestate ceased living together as a couple.
R39
Where a partner has died within two years of separation, and the couple has
divided their relationship property by entering an agreement
that does not
conform to the new Act’s requirements, the surviving partner should remain
eligible to succeed in an intestacy.
The court should, however, retain power to
give effect to a non-compliant settlement agreement if non-compliance has not
caused material
prejudice to the parties.
- 7.93 The current
law provides that the intestate’s husband, wife, civil union partner or
surviving de facto
partner491F[492] may succeed. A de
facto partner of less than three years will be an eligible partner only where
there is a child of that relationship
or the surviving partner had made
substantial contributions to that
relationship.492F[493] Where there
is more than one qualifying relationship, the partners share evenly in the
property allocated for a surviving
partner.493F[494]
- 7.94 The
Administration Act does not specify what the position should be when married or
civil union partners have separated and entered
into a settlement agreement but
have not obtained a formal dissolution or separation order. Cases have reached
different conclusions
about whether the surviving former spouse or civil union
partner should remain eligible in the
intestacy.494F[495] The
uncertainty only arises in respect of spouses and civil union partners because,
until the marriage or civil union is formally
dissolved, they technically remain
married or in a civil union. De facto partners, on the other hand, cease to be
in a de facto relationship
when they cease to live together as
partners.
Results of consultation
- 7.95 In
the Issues Paper, we expressed our preferred view that a surviving partner from
a de facto relationship should be eligible
in an intestacy where they would also
be eligible under the PRA (as amended pursuant to our recommendations in the PRA
review), including
short-term de facto
relationships.495F[496]
- 7.96 Submitters
commented on what should amount to a qualifying relationship when considering
one partner’s entitlements when
the other partner dies. We discuss these
comments in Chapter 4 regarding relationship property entitlements. In respect
of intestacy,
Succeed Legal questioned whether it would be in line with societal
views to exclude from intestacy entitlements de facto relationships
of less than
three years where there is no child of the relationship or where there have not
been substantial contributions.
- 7.97 In the
Issues Paper, we also presented our preliminary view that a surviving partner
who had separated from the intestate prior
to their death should remain eligible
to succeed under the intestacy regime provided no more than two years had
elapsed since they
ceased living together as a couple. Partners would also be
able to contract out of and settle claims against each other’s estates
under the new Act provided the agreements conform to the new Act’s
procedural requirements. However, we contemplated that this
proposal would not
exclude partners who had informally settled the division of their relationship
property. Where one partner dies
within two years of separation, the other
partner would remain eligible under the intestacy regime. Noting that this
approach may
mean the partner gets a windfall at the expense of other
beneficiaries and be contrary to the intestate’s intentions, we asked
submitters to comment on whether there should be a mechanism whereby the
affected beneficiaries should be able to challenge the partner’s
eligibility because of the informal settlement of their relationship property
matters.
- 7.98 We received
submissions from ADLS, Succeed Legal, Morris Legal and TGT Legal about the
proposals for separated partners. All
four submitters agreed with the proposal
to place a two-year limit on a former partner’s eligibility. They also
agreed with
the proposal to preclude former partners from being eligible to
claim in intestacy where those partners have settled their relationship
property
division or contracted out of eligibility and these agreements have met the
procedural requirements discussed in Chapter
10.
- 7.99 ADLS,
Succeed Legal and Morris Legal disagreed with the proposal to take account of
informal settlement agreements because it
would undermine the preference for
settlement agreements to meet the procedural requirements. Morris Legal
submitted alternative
options, including deeming the surviving former partner as
having elected a division of relationship property or having a mechanism
whereby
affected family members could make a claim in these circumstances.
Conclusions
- 7.100 We
recommend that people who, prior to the death of their partner, were in
qualifying relationships for the purposes of relationship
property entitlements
should also be in qualifying relationships for the purposes of the intestacy
regime. Those qualifying criteria
are set out in Chapter 4. By way of summary, a
qualifying relationship would include:
(a) surviving spouses, civil union partners and de facto partners who have been
in a de facto relationship for three years or
more;496F[497]
(b) partners in a de facto relationship of less than three years that meet the
additional eligibility criteria of:
(i) there being a child of the relationship and the court considers it just to
make orders;497F[498] or
(ii) the applicant has made substantial contributions to the relationship and
the court considers it just to make an order for division;
and
(c) separated partners provided that no longer than two years have elapsed
between the partners ceasing to live together in the relationship
and the
death.
- 7.101 Where the
intestate is survived by more than one qualifying partner, we think these
partners should share evenly in the property
allocated for a surviving
partner.498F[499] This would not
represent a change from the current
law.499F[500]
- 7.102 While we
recognise that our recommended approach to separated partners may require an
administrator to make difficult factual
determinations about the date of
separation, we favour it because it enables consistency between the treatment of
married, civil
union and de facto
partners.500F[501]
- 7.103 In Chapter
10, we recommend that partners should be able to contract out of and settle
claims against each other’s estates
under the new Act provided the
agreements conform to the new Act’s procedural requirements. If the
partners have separated
and entered an agreement that purports to settle all
entitlements and claims to the other’s property, even if the marriage
or
civil union has not been formally dissolved, we recommend that the terms of the
agreement should mean the surviving partner is
ineligible to receive in the
deceased partner’s intestacy.
- 7.104 Where
couples have settled the division of their relationship property without
entering an agreement that conforms to the new
Act’s requirements and one
partner dies within two years of separation, the other partner should remain
eligible under the
intestacy regime. The court should, however, retain power to
give effect to a non-compliant settlement agreement if non-compliance
has not
caused material prejudice to the parties (discussed further in Chapter
10).501F[502] Under this
mechanism, a personal representative or an affected beneficiary in an intestacy
could apply to the court to give effect
to the non-complying settlement
agreement.502F[503]
Distributing to descendants when their parent died prior to
the intestate
RECOMMENDATION
R40
The per stirpes/by family distribution of intestate estates should
continue.
- 7.105 In the
Issues Paper, we presented two options for distributing an intestate estate
where the family member of the intestate
who would otherwise receive a share has
died but has children:
(a) Option One: Retain the existing per stirpes (by family) distribution.
Distribution by family works by dividing a deceased parent’s
share in
equal portions among their living children.
(b) Option Two: Introduce a limited per capita (by head) distribution at each
generation. This would mean that, when some but not
all of one generation had
died before the intestate, each child would take an equal portion of what their
parent would have inherited
(the per stirpes/by family distribution would
apply), but when an entire generation has predeceased the intestate, that
generation’s
children would all take an equal share (the per capita/by
head distribution would apply).
- 7.106 The
diagram below describes how these options would work using the example of an
intestate woman with two sons who predeceased
her and six grandchildren, four
from one son and two from the other.
(a) Under Option One, son A’s four children would get one-quarter of their
father’s half of the estate (one-eighth of
the estate each) and son
B’s children would get a half of their father’s half of the estate
(one-quarter of the estate
each).
(b) Under Option Two, the six grandchildren would each get one-sixth of the
whole estate. If son B was still alive, both options
would lead to the same
result: Son B would get half of the estate, and son A’s four children
would each get a quarter of son
A’s half (one-eighth of the
estate).
1/6
1/6
1/6
1/6
1/6
1/6
OPTION TWO
1/4
1/4
1/8
1/8
1/8
1/8
OPTION ONE
Results of consultation
- 7.107 The
submissions we received on this issue, from Public Trust, ADLS, Morris Legal and
TGT Legal, preferred retaining the per
stirpes/by family distribution in all
scenarios. Morris Legal submitted that it is always preferable for efficient
estate administration.
Public Trust and TGT Legal favoured retaining the per
stirpes/by family distribution regime on the grounds of its relative simplicity
and because it replicates what would generally occur if the person entitled had
died after the intestate.
Conclusions
- 7.108 We
recommend that the per stirpes/by family distribution should continue. It will
replicate the distribution that would generally
occur if the person entitled had
died after the intestate (that the parent would have passed on their inheritance
to their children).503F[504] It
may also promote efficient administration, particularly as administrators are
able to make distributions to known relatives while
they reserve the shares of
unidentified
relatives.504F[505]
- 7.109 It may be
seen as fairer to treat all of one generation equally (for example,
grandchildren) when none of their parents (for
example, the deceased’s
children) are alive and may better reflect the presumed wishes of most people
who die intestate.505F[506]
However, the method may involve a degree of complexity and delay where there is
difficulty tracing members of a
generation.506F[507]
Property outside the estate
RECOMMENDATION
R41
The intestacy regime should continue to take no account of property that does
not fall into the estate.
- 7.110 Currently,
the intestacy regime takes no account of property that does not fall into the
estate, such as property the intestate
owned as joint tenant that has accrued to
the surviving joint tenants by survivorship or property the intestate disposed
of before
their death, such as by gift. Some may consider it unfair that a
person who has received property from the intestate during the intestate’s
lifetime in addition receives the full extent of their entitlement under the
intestacy regime. In the Issues Paper, we proposed that
the intestacy regime
should continue to take no account of property that does not fall into the
estate.
Results of consultation
- 7.111 Of
the few submitters who addressed this point, most agreed with the proposal,
including Public Trust, NZLS, Succeed Legal and
TGT Legal. ADLS, however,
submitted that the intestacy rules should take account of property outside the
estate to achieve an equitable
sharing of the estate property. ADLS provided the
example of a deceased who had settled assets on trust to the benefit of a
partner
with no benefit to descendants.
Conclusion
- 7.112 We
recommend that the intestacy regime should continue to take no account of
property that does not fall into the estate.
- 7.113 An
intestacy regime that seeks to take account of gifts made before the
intestate’s death or assets that pass by survivorship
would be
complicated. International approaches vary. Some jurisdictions require
administrators to take account of lifetime gifts
made within a certain time
period (normally five years) unless a contrary intention can be
proved.507F[508] Other
jurisdictions require administrators to take lifetime gifts into account only
where there is evidence the intestate intended
the gift to be an advancement on
the recipient’s share of the
estate.508F[509] Such provisions
are generally aimed at achieving fairness or equality. However, they may not
reflect the intestate’s intention
because, for example, the intestate may
have intended jointly owned property to pass by survivorship on their death. It
may be a
considerable task for an administrator to scrutinise transactions the
intestate made in the five years before death. Disputes may
also occur about the
value of the advancement or whether any oral or written statement made by the
intestate is sufficient proof
of their intention.
- 7.114 Many
jurisdictions have done away with these types of provisions in the context of
intestacy, and this has commonly been the
recommendation of law reform bodies,
including the Australian National Committee for Universal Succession Laws, the
South Australian
Law Reform Institute, the Law Commission of England and Wales
and the Law Reform Commission of British
Columbia.509F[510]
- 7.115 The
intestacy regime’s function is to distribute property that the intestate
did not dispose of through a will. It seems contrary to this aim to
unwind dispositions or survivorship arrangements made before death.
- 7.116 In Chapter
8, we recommend that, where a family member wishes to claim relationship
property rights or family provision under
the new Act but there is insufficient
property in the estate, there should be rights in some circumstances to recover
the deceased’s
property that falls outside the estate. We recommend that
there should be an ability to claw back property that the deceased disposed
of
with intent to defeat a person’s rights or the deceased’s interest
in joint tenancy property. Consequently, although
an administrator would not be
required to take into account property falling outside an estate, a claimant
could still exercise rights
to recover property through these anti-avoidance
mechanisms in some cases.
Statutory trusts for minors
RECOMMENDATION
R42
A minor who is eligible to succeed in an intestacy should continue to take a
vested interest held on trust until they reach 18 years.
- 7.117 Section 78
of the Administration Act sets out the rules relating to statutory trusts for
descendants and other classes of relatives.
The section is complicated, and its
relationship to the distribution rules in section 77 is sometimes
misunderstood.510F[511]
- 7.118 The effect
of section 78 is that, if a beneficiary in an intestacy is under 18
years,511F[512] their share of the
estate is held on trust for them. If a beneficiary dies before turning 18, their
share of the estate will be distributed
to the intestate’s next of kin as
if the minor beneficiary had predeceased the intestate.
- 7.119 Several
other jurisdictions provide for the absolute vesting of a minor’s share at
any age.512F[513] This means that
a minor’s share is ascertained and the minor has the right to it
immediately. One of the justifications for
absolute vesting at any age is that
it allows a minor’s share to pass to the minor’s children if the
minor dies before
the age of
18.513F[514] In the Issues Paper,
we expressed our preliminary view that the statutory trust regime for minors
should
continue.514F[515]
Results of consultation
- 7.120 Public
Trust, NZLS and ADLS all submitted that minor beneficiaries should continue to
take a vested interest held on trust until
they reach 18 years of age. The only
other submitter on this subject, MinterEllisonRuddWatts, also agreed that minors
should take
a vested interest. However, they considered that this should be
until the person reaches 25 years.
Conclusion
- 7.121 We
recommend that a minor should continue to take a vested interest held on trust
until they reach 18 years. This approach avoids
the possibility that a further
grant of administration is required when a beneficiary dies before turning 18.
- 7.122 There will
be circumstances in which it is disadvantageous for the share of the estate to
be held on trust, such as where the
minor’s share is of low value and the
trust incurs professional management fees. A child’s interests are
generally best
served by the person responsible for their daily care having
sufficient cash assets or income. In such circumstances, trustees should
have
the discretion to distribute the capital. The ability to make such advancements
is governed by sections 62–64 of the Trusts
Act
2019.515F[516]
The prescribed amount for partners
RECOMMENDATION
R43
The prescribed amount which surviving partners of the intestate take in an
intestacy when there are descendants or parents of the
intestate should be
repealed.
- 7.123 Under the
current law, a surviving partner is entitled to a prescribed amount in priority
to other entitlements where the intestate
is also survived by descendants or
parents. The prescribed amount is set by regulation and is currently $155,000
plus interest.516F[517]
- 7.124 The
prescribed amount (sometimes referred to as a statutory legacy) is a method that
aims to protect the partner against hardship.
Overseas law reform bodies have
suggested that one of the main objectives of the prescribed amount is to enable
a surviving partner
to purchase the intestate’s interest in the family
home so the partner does not have to
move.517F[518]
- 7.125 In the
Issues Paper, we explained that there are several issues arising from the use of
a prescribed amount and the way it currently
operates:
(a) It does not reflect the apparent public preference that an estate be shared
between partners and children on a fixed proportion
basis regardless of the
total estate size.518F[519]
(b) It can produce inequitable outcomes. In small estates, the prescribed amount
may mean that children receive little or none of
the estate, potentially leading
to FPA claims for further provision. In other cases, the prescribed amount may
not be set high enough
to provide the partner with a sufficient legacy. There
may be times where the partner’s total share of the estate is less than
their relationship property
entitlement.519F[520]
(c) It is inflexible and does not take into account different ownership
structures of the intestate’s assets (such as tenancy
in common compared
with joint ownership).
(d) The single fixed sum does not account for geographic variation in housing
prices.
(e) It is infrequently reviewed and is not responsive to changes in housing
prices over
time.520F[521]
Results of consultation
- 7.126 In
the Issues Paper, we proposed repealing the prescribed amount for partners.
- 7.127 All the
submitters to the Issues Paper who commented on the prescribed amount agreed
that it should be repealed. This included
Public Trust, Perpetual Guardian,
NZLS, ADLS,521F[522] Chapman
Tripp, MinterEllisonRuddWatts, Succeed Legal, TGT Legal and Te Kani Williams.
Public Trust said that, in their experience,
the current prescribed amount does
not reflect what the intestate would have done if they had left a will.
- 7.128 On the
consultation website, we asked submitters what they thought of the current
intestacy regime. The most common criticism
that we received related to the
prescribed amount. Submitters criticised the prescribed amount either because
they considered it
was too low and had not kept up with the rise in house prices
or because it would leave children with no inheritance when the entire
estate
was worth less than $155,000. Several submitters told us that any fixed amount
was problematic and should be replaced with
a proportion of the estate.
Conclusions
- 7.129 The
prescribed amount for partners should be repealed because of the numerous issues
identified above. Submitters unanimously
agreed with this recommendation. In the
Issues Paper, we explained that the Succession Survey results indicated a
preference for
sharing the estate between partners and children on a fixed
proportion basis that did not differ depending on the estate
size.[523] The current method for
distributing between partners and children means the respective proportions are
impacted by the total value
of the estate. In its place, we recommend that
surviving partners are entitled to a fixed portion of the estate, which we
discuss
further below.
- 7.130 We
acknowledge that moving away from a prescribed amount is a significant change to
the intestacy regime and would differ from
many comparable
jurisdictions.523F[524] Where
overseas law reform bodies have reviewed their intestacy regimes, they have
tended to recommend an increase to these prescribed
amounts, generally with the
view that any increase should reflect rising house prices and
inflation.524F[525] We considered
this option of increasing the prescribed amount and legislating for CPI
adjustments but do not see it as a satisfactory
solution because it does not
accord with the apparent public preference that an estate be shared between
partners and children on
a fixed proportion basis regardless of the total estate
size. For example, we have heard that children sometimes miss out entirely
because a family home passes by survivorship to the surviving partner, leaving
the estate below the value of the current prescribed
amount. Children may feel
aggrieved when they receive no inheritance from a parent because of the
prescribed amount in an intestacy
regime, particularly when their parent’s
partner is not the child’s parent. It is also difficult to set a
prescribed
amount that reflects house prices given the range in house values
across different areas in Aotearoa New
Zealand.525F[526]
Partner, no descendants but one or more parent
RECOMMENDATION
R44
Where an intestate is survived by a partner, no descendants but one or more
parent, the intestacy regime should provide that the partner
takes the entire
estate.
- 7.131 Under the
current law, where the intestate is survived by a partner, no descendants but
one or more parent, the partner will
take the personal chattels, the prescribed
$155,000 and two-thirds of anything that remains. The parent(s) take the
remaining third.
- 7.132 In the
Issues Paper, we proposed that the partner should take the entire estate in this
situation rather than the intestate’s
parent or parents receiving a share.
We had received feedback from lawyers that this was an area where their clients
were commonly
surprised by the current law. Additionally, nearly three-quarters
(73 per cent) of respondents to the Succession Survey agreed or
strongly agreed
that a surviving partner should get all of an intestate estate when the
intestate is also survived by their mother
and
brother.526F[527]
- 7.133 This
proposal was overwhelmingly supported by submitters to the consultation website.
A small number of submitters felt that
particular circumstances should entitle
the parent to a share. These included where the parents had contributed to the
estate in
the form of a gift or loan to buy a home, where the intestate was
maintaining a parent at the time of death or regularly during their
lifetime,
where the parent is in poverty, where the estate was particularly large, or
where the intestate was a younger adult. A
small minority of submitters
disagreed with the proposal, with several suggesting that parents should get
some share of the intestate’s
estate – one-quarter, one-third or
one-half – and two submitting that parents should never receive a share of
the estate.
- 7.134 Several
submitters to the Issues Paper specifically addressed this proposal. NZLS,
MinterEllisonRuddWatts, TGT Legal and Chris
Kelly supported the proposal.
However, ADLS and Jan McCartney QC disagreed, particularly because of a general
concern about the growing
population of older people and the financial support
that they require. ADLS submitted that, when the pool of relationship property
assets exceeds a prescribed amount of $700,000, the intestacy provisions should
provide for a parent to receive a minimum of 15 per
cent of the estate.
- 7.135 Public
Trust submitted that consideration should be given to whether the
intestate’s parents should receive some of the
estate when the children
are under a certain age, such as 25 years:
- We have noted
that in practice where children under this age write a will, they continue to
leave all, or a significant portion of,
their estate (sometimes half) to their
parents (not their partner) or they may opt to leave a significant portion of
their estate
to their parents/siblings and the other portion to their partner.
Either way, parents of children at this stage are still commonly
a major
beneficiary of their estates.
Conclusion
- 7.136 We
recommend that the partner should take the entire estate where the intestate is
also survived by one or more parent but no
descendants. This change would better
reflect the expectations of New Zealanders, as illustrated by the results of the
Succession
Survey and the strong support for the proposal in consultation.
- 7.137 As the
largest professional trustee corporation in Aotearoa New Zealand, Public Trust
is in a good position to identify trends
among will-makers. It is notable that,
in its experience, a person under 25 who has a partner tends to leave a
significant portion
of their estate to their parent(s). We have considered the
possibility of providing an alternative distribution option for those
under 25,
but we do not recommend this for several reasons:
(a) A relationship would need to meet the qualifying criteria discussed earlier.
Generally, this will mean that the couple were married,
in a civil union or in a
de facto relationship for three years or more, and this is therefore less likely
to occur when the intestate
is under 25 years of age.
(b) Many people aged under 25 will have little property. Those with more
property, such as those that own a home, may be more likely
to have a will.
(c) An arbitrary age limit may have the unintended effect of triggering
grievances, for example, by parents of a child who dies aged
26.
(d) It appears from the Succession Survey results and the consultation responses
that there is strong public support for prioritising
partners. This, combined
with the fact that New Zealand’s general law and policy does not impose
any obligations on a child
to support a parent, is reason not to require that a
parent takes a share when the intestate is also survived by a partner but no
descendants. A child who wants to provide for their parent on death should make
a will to that effect.
Partner and descendants
RECOMMENDATION
R45
A surviving partner of an intestate should take the whole of the estate where
all the intestate’s children are of that relationship.
Where one or more
of the intestate’s children are of another relationship, the
intestate’s partner should take the family
chattels and 50 per cent of the
remaining estate, and the intestate’s children should share evenly in the
remaining 50 per
cent.
- 7.138 Under the
current law, where the intestate is survived by a partner and descendants, the
partner takes the personal chattels,
the prescribed amount of $155,000 and
one-third of what remains. As explained above, we consider there are several
problems with
the use of a prescribed amount.
- 7.139 A theme
that has emerged in this review is the difficulty presented by situations where
a deceased leaves a surviving partner
and children from a former relationship.
The difficulty lies in balancing the different family members’ interests.
When the
intestate 's surviving partner is the parent of the intestate’s
children, it might be expected that any wealth the surviving
partner takes from
the estate would eventually be passed to the children on the surviving partner's
death (the conduit theory). However,
where the surviving partner is not the
parent of the children, there is less chance of the surviving partner acting as
a “conduit”
towards the intestate’s children from a different
relationship. The Succession Survey suggested that there is some preference
for
partners taking a greater proportion of the estate where they share children
compared with where the children are from a former
relationship.527F[528]
- 7.140 We
presented three options for reform in the Issues Paper.
(a) Option One: The partner takes the whole of the estate where all the
intestate’s descendants are of that relationship. Where
one or more of the
intestate’s children are of another relationship, the intestate’s
partner takes the family chattels
and 50 per cent of the remaining estate, and
the intestate’s children share evenly in the remaining 50 per cent.
(b) Option Two: The partner’s share decreases
depending on the number of descendants. A partner would take the family chattels
and two-thirds of the remaining estate where there is one child (or their
descendants where the child died before the intestate parent)
or one-half where
there are two or more children (or their descendants). It would be irrelevant
whether or not the intestate’s
children are also children of the
partner.
(c) Option Three: The partner’s share is a set percentage and does not
change depending on the number of descendants or the
relationship of those
descendants to the surviving partner. In the Issues Paper, we proposed that a
surviving partner would take
the family chattels and half of the remaining
estate while the other half would be divided evenly between the
intestate’s children
(or their descendants where the child died before the
intestate parent).
- 7.141 Some
submitters did not prefer any of the options presented. Jan McCartney QC
submitted that the division should be relative
to the estate size, and Professor
Bill Atkin submitted that the starting point should be to calculate the
partner’s relationship
property entitlement.
- 7.142 For some
submitters to the consultation website, ensuring that a surviving partner could
remain in their home was the most important
factor, irrespective of the options
presented. One submitter to the consultation website suggested that the division
should be a
matter of agreement for the parties. The submitter suggested that
the estate could be held on trust until an agreement was reached,
and if no
agreement was reached within 10 years, the estate should pass to
charity.
Results of consultation regarding Option One
- 7.143 Fifteen
submitters to the consultation website preferred Option One. One submitter who
had experience working in the probate
registry said that Option One was along
the lines of what most will-makers would do. Several submitters thought that
Option One should
also depend on the age of the children in the partner’s
care. For example, where the children of that relationship are under
20 or 25
years, the partner would be entitled to the whole estate but in addition to this
changing where there is one or more children
of a different relationship, it
might also differ when the children are over the prescribed age.
- 7.144 Eight
submitters to the Issues Paper expressed support for Option One. This included
Public Trust, Perpetual Guardian,
NZLS,[529] Succeed Legal, TGT
Legal, Morris Legal, Chapman Tripp and Chris
Kelly.[530] These were the reasons
provided:
(a) It would give the surviving parent the financial ability to continue raising
the children in the same manner they did before
the intestate’s death and
building their wealth.
(b) More often than not, children ultimately inherit their deceased’s
parent’s share by way of the surviving parent.
(c) It would best reflect what most people would do with their estate had they
made a will.
(d) It was simple and struck a balance between the entitlements of a partner and
those of the descendants, particularly where the
descendants are not the
biological children of the surviving partner.
(e) Statutory trusts can be difficult to administer, and it would avoid the need
for them in cases where the children were of the
same relationship and younger
than 18 years.
(f) It may create better equity in smaller estates.
- 7.145 However,
two submitters, Perpetual Guardian and Succeed Legal, questioned whether its
interaction with family provision claims
might be problematic. Succeed Legal
noted that it might be more difficult when the intestate’s children are
all of the same
relationship but are not in the care of the surviving partner,
and they were unsure whether it would be sufficient to rely on a family
provision award for those children in such cases.
- 7.146 Chapman
Tripp presented a modified version of Option One whereby the estate would be
divided into equal fractions when there
were children from another relationship
and the surviving partner would take one fraction plus a fraction for each of
their children.
The other children would each take their own fraction. In
Chapman Tripp’s view, the intestacy provisions should also be consistent
with the rules for family provision, thus intestacy should only benefit
dependent children and should exclude adult children without
financial need.
Results of the consultation regarding Option Two
- 7.147 Eight
of the submitters to the consultation website preferred Option Two, although one
of these submitters proposed that the
partner’s share might be split in
half again so that another portion could be shared among other family members.
No further
explanations were given by submitters about their reasons for
preferring Option Two.
- 7.148 In
addition to their comments in support of Option One, TGT Legal also saw
“merit in Option Two, on the basis that it
may be more equitable for
children to receive specific entitlements on intestacy (depending on the number
of children) so as to mitigate
the risk under Option One of the surviving
partner being an unreliable conduit”.
- 7.149 No other
submitter to the Issues Paper favoured Option Two. Perpetual Guardian said that
an issue with Option Two is that where
there are minors a trust will need to be
in place.
Results of the consultation regarding Option Three
- 7.150 Thirty-one
submitters to the consultation website favoured Option Three – more than
twice the number that favoured Option
One and nearly four times the number that
favoured Option Two. However, submitters expressed a wide range of views about
the proportions
that partners and children (or their descendants) should share.
- 7.151 Six
submitters agreed that a partner should receive 50 per cent and the children
should share the other 50 per cent. Two submitters
felt that the partner’s
share should be more than 50 per cent. Conversely, seven submitters considered
that the estate should
be distributed in equal shares between each individual
partner and child, and one submitter thought that the children should share
in
more than 50 per cent of the estate. Two submitters considered that the size of
the estate should make a difference to the proportions,
so that a partner would
receive a lesser share in a lower-value estate. For three submitters, the
relative financial need or dependence
of the partner and the children mattered.
The length of the relationship mattered to a few individuals for determining the
respective
proportions.
- 7.152 Three
submitters to the Issues Paper preferred Option Three – ADLS,
MinterEllisonRuddWatts and Bill Patterson. Patterson
stated that it is the
simplest option and it would eliminate any delay in the partner receiving their
share while descendants are
located.
Conclusions on the distribution between partners and
descendants
- 7.153 We
recommend that a surviving partner should take the whole of the estate where all
the intestate’s children are of that
relationship (Option One in the
Issues Paper). Where one or more of the intestate’s children are of
another relationship, the
intestate’s partner should take the family
chattels and 50 per cent of the remaining estate, and the intestate’s
children
should share evenly in the remaining 50 per cent. In all situations, a
descendant will inherit in their parent’s place where
their parent
predeceased the
intestate.530F[531]
- 7.154 We favour
this approach for several reasons:
(a) It would best reflect the practices of most will-makers. International
studies have indicated a general preference for prioritising
a partner over
children, particularly where the children are also of that
relationship.531F[532] The
Succession Survey respondents also indicated a preference for prioritising a
partner with shared children compared with children
of a former relationship,
but the majority still favoured splitting an estate evenly between children and
partner (either in equal
shares or with half the estate being allocated to the
partner).53[533]
(b) A surviving parent will often act as a conduit for their children. Children
may share the benefit of the surviving parent inheriting
in two possible ways.
If the children are young, their interests are normally best served by better
equipping the surviving parent,
and if they are adults, they are likely to
inherit any unconsumed portion of property from their surviving
parent.533F[534] If the surviving
partner is not the parent of the intestate’s children, there is less
likelihood the partner would act as a
conduit for the intestate’s
children.
(c) It eliminates the need for trusts for children of that relationship who are
under 18. At times, trusts can be a cumbersome way
of providing for minor
children.534F[535] Difficulties
may arise for parents seeking access to funds from trustees for the
child’s
benefit.535F[536]
(d) It avoids fragmenting the estate where the surviving partner is the parent
of the children. This may have advantages such as
allowing a partner to remain
in the home.
(e) It was supported by most submitters to the Issues Paper, including Public
Trust, Perpetual Guardian and NZLS.
- 7.155 This
approach is preferred in several jurisdictions in Australia, Canada and the
United States.536F[537]
Descendants but no partner
RECOMMENDATION
R467
Where an intestate is survived by descendants but no partner, the
intestate’s children should share the estate evenly. Per stirpes/by
family
distribution should apply to the shares available to descendants.
- 7.156 Under the
current law, where the intestate is survived by descendants but no partner, all
of the estate is held on statutory
trusts for the descendants.
- 7.157 In the
Issues Paper, we proposed no change to the current law. The submissions we
received all agreed with our proposal. This
included Public Trust, NZLS, ADLS,
MinterEllisonRuddWatts, TGT Legal, Jan McCartney QC and Chris Kelly.
Conclusions
- 7.158 We
recommend that the current law should continue, so that where the intestate is
survived by descendants but no partner, the
intestate’s children should
share the estate evenly passing to descendants on a per stirpes/by family basis
(meaning that children
share evenly in the share that their parent would have
taken had they been alive). No descendant should take a share of the estate
where their parent has also taken a
share.537F[538]
- 7.159 We are
confident that this is consistent with public expectations and what most
intestate people would do if they were to make
wills. No submitter to the Issues
Paper disagreed with the proposal, and this aspect of the distribution regime
has not been raised
as an issue in any of our consultation.
No partner or descendants but siblings and
parents
RECOMMENDATION
R47
Where an intestate is not survived by a partner or any descendants, the
intestate’s parents should share the estate evenly.
If the intestate is
survived by only one parent, that parent should take the whole estate.
- 7.160 Under the
current law, the intestate’s parents will take priority over the
intestate’s siblings.
- 7.161 In the
Issues Paper, we commented that while we were not aware of any research into the
distribution preferences of New Zealand
will-makers when survived by parents and
siblings, a public attitudes survey conducted in England and Wales revealed that
people
favoured equal sharing or giving priority to
parents.538F[539] We expressed our
preliminary view that the current priority to parents should be preferred.
- 7.162 We
received few submissions regarding this aspect of the distribution regime.
Public Trust, NZLS, ADLS, TGT Legal and Chris
Kelly all agreed that the
intestate’s parents should retain priority to inherit in advance of the
intestate’s siblings.
Jan McCartney QC submitted that the estate should be
distributed in equal shares between parents and siblings in this situation.
Conclusions
- 7.163 Where
the intestate is not survived by a partner or any descendants, the
intestate’s parents should have priority above
siblings.539F[540]
- 7.164 This is
the position under current law as well as in most comparable
jurisdictions.540F[541] We prefer
this distribution mechanism because it allows for the intestate’s siblings
to inherit from their parents when the
parents die. We also note that it
received support from five of the six submitters to the Issues Paper.
- 7.165 The
alternative option of distributing the estate equally between siblings and
parents has the disadvantage of requiring the
estate to be divided between more
people. In some estates, each beneficiary could receive very little. It may also
be more complicated
for administrators, particularly when property needs to be
sold so that its value can be shared.
No partner, descendants or parents but siblings and nieces
and nephews
RECOMMENDATION
R48
Where an intestate is survived by siblings, nieces and nephews but no
partner, descendants or parents, the intestate’s siblings
should share the
estate evenly. Per stirpes/by family distribution should apply to the shares
available to nieces and nephews or
their descendants.
- 7.166 Where the
intestate is survived by siblings, nieces and nephews but no partner,
descendants or parents, the current law prioritises
siblings over nieces and
nephews.
- 7.167 Again,
this was generally supported by the few submissions we received, including NZLS,
TGT Legal and Chris Kelly. One submitter
said that the intestacy regime should
not extend beyond distributing to a deceased’s siblings. Instead, that
submitter would
prefer to see estates being transferred to the Crown and used to
benefit charities.
Conclusion
- 7.168 We
recommend no change to the current law. Where the intestate is survived by
siblings, nieces and nephews but no partner, descendants
or parents, siblings
should inherit in priority to nieces and nephews subject to the per stirpes/by
family distribution method discussed
above.
- 7.169 Administrators
would benefit from the ease of transferring the estate to siblings given it is
likely to be a smaller class of
recipients than nieces and nephews. It also
allows for a sibling’s share to be distributed to their children if the
sibling
predeceased the intestate.
No partner, descendants, parents or siblings (or their
descendants) but grandparents, aunts and uncles
RECOMMENDATION
R49
Where an intestate is not survived by any partner, descendants, parents,
siblings or siblings’ descendants, the current distribution
method between
grandparents and their descendants according to the parental lines should
apply.
- 7.170 Under the
current law, where the intestate is not survived by any partner, descendants,
parents, siblings or siblings’
descendants, the estate is split equally
between the maternal and paternal grandparents and aunts and
uncles.541F[542] Priority is given
first to grandparents and then to aunts and uncles. This means that a per
stirpes/by family distribution will apply.
If there are no surviving aunts or
uncles (or descendants) on one kinship line, the estate will pass to the
other.
- 7.171 In the
Issues Paper, we presented two alternative options for the method of
distribution:
(a) Option One: Retain the existing division between the parental lines.
(b) Option Two: Introduce a generational distribution. This would mean that
aunts and uncles are entitled to the estate only when
there is no partner,
descendant, parent, sibling (or their descendant) or
grandparent.
Results of consultation
- 7.172 Most
submissions on the Issues Paper favoured retaining the status quo, Option One.
These were Public Trust, NZLS, ADLS, Chapman
Tripp, Morris Legal,
MinterEllisonRuddWatts and Succeed Legal. Public Trust said that there was good
basis and public opinion to
support its retention. For Morris Legal and Chapman
Tripp, the current law was the fairer solution and would prevent whole estates
being distributed to the next of kin on one side. Morris Legal also agreed that
gender-neutral language should be used. Succeed Legal
preferred Option One
because it is a known process and there is not sufficient need to adjust.
- 7.173 Of the
submitters who commented on this proposal on the consultation website, most
favoured Option Two. Some said that they
had no preference between the two
options, and a minority favoured the current law (Option One). Most submitters
did not express
a reason for their preference, but two submitters commented that
they preferred Option Two because it prioritised looking after the
oldest
relatives. One submitter with experience working in the probate registry said
that it is so rare that it is of no consequence,
and several submitters
considered that none of these relatives should inherit.
Conclusions
- 7.174 Where
the intestate is not survived by any partner, descendants, parents, siblings or
siblings’ descendants, we recommend
retaining the current distribution
method between grandparents and their descendants according to the parental
lines. This was Option
One in the Issues Paper.
- 7.175 There are
good reasons in support of both the options presented in the Issues Paper.
However, Option One was endorsed by several
submitters including Public Trust,
NZLS and ADLS. It is persuasive that Public Trust commented that there was good
basis and public
opinion to support the retention of the current law given that
Public Trust is likely to have the most comprehensive experience dealing
with
the administration of intestate estates. Option One also avoids the entire
estate going to next of kin on one side of the family
when there are next of kin
on both sides.542F[543] We noted
in the Issues Paper that people may consider it unfair when, for example, the
intestate’s maternal grandmother takes
everything when there are living
paternal aunts and uncles.
- 7.176 Option Two
may be considered simpler to understand and apply, and its equal treatment of
relatives of the same generation might
be more likely to reflect how most
intestate people would distribute their estate in that situation. It also
received the greatest
support from submitters to the consultation website.
Option Two may improve efficient estate administration but may also slow it
down. For example, if there is a single surviving grandparent, an administrator
does not need to identify each aunt or uncle, but
if the paternal aunts and
uncles were easily identifiable and the maternal aunts and uncles were not, this
could delay the paternal
aunts and uncles getting their share (a problem that
would not arise under Option One).
No living grandparent, aunt, uncle, cousin or closer
relative (bona vacantia estates)
RECOMMENDATIONS
R50
Where the intestate is not survived by any of the relatives listed above
(partner, descendants, parents, siblings, siblings’
descendants,
grandparents, grandparents’ descendants), the Crown should take the estate
as bona vacantia.
R51
The Crown should have discretion to distribute any or all of the estate to
the following parties on application:
- Dependants
of the intestate (whether kindred or not).
- Any
organisation, group or person for whom the intestate might reasonably be
expected to have made provision.
- Any
other organisation, group or person.
- 7.177 Under the
current law, when the intestate is not survived by any of the relatives listed
above, the estate would be considered
ownerless and be taken by the Crown as
bona vacantia (ownerless property). The Crown may distribute any or all of the
estate to provide
for the intestate’s dependants (whether kindred or not)
and other persons for whom the intestate might reasonably have been
expected to
make provision. Applications are made to Te Tai Ōhanga | The Treasury,
which performs the distribution function
on behalf of the Crown. At present, it
is rare for estates to vest in the Crown as bona
vacantia.543F[544]
- 7.178 In the
Issues Paper, we proposed that the Crown retains its discretion to distribute
any or all of a bona vacantia estate, but we asked whether the list of
possible recipients should be extended to include any other organisation or
person on the
grounds that a broad list would allow charities, community groups,
whānau, hapū or iwi groups or other organisations to
utilise funds
that would otherwise vest in the Crown. We explained that several Australian
states preferred a broader
list.544F[545]
Results of consultation
- 7.179 Several
submitters to the Issues Paper commented on bona vacantia estates. Public Trust,
NZLS, TGT Legal and Morris Legal agreed
that the Crown should have broader
discretion to distribute bona vacantia estates. Morris Legal agreed that the
current provision
should be amended to resemble the provisions in Tasmania and
New South Wales but should also include references to whānau, hapū
and
iwi groups.
- 7.180 MinterEllisonRuddWatts
supported the Crown having discretion to distribute bona vacantia estates
provided that the process was
simple and transparent. The Crown should not
benefit from unreasonable fees, and advances should not be made to organisations
with
direct or indirect political affiliations.
- 7.181 Ngā
Rangahautira submitted that the current system of vesting intestate estates in
the Crown grants the Crown greater power
than described under te Tiriti o
Waitangi:
- The inherently
relational nature of tikanga Māori means that parties listed beyond those
under the Administration Act 1969 might
have rights and responsibilities in the
property of the intestate. Vesting the estate in the Crown therefore undermines
the tino
rangatiratanga of whānau, hapū and iwi who may have rights
and obligations in the property. Due to this, the estate should
not be vested in
the Crown but left to whānau, hapū and iwi to
distribute.
- 7.182 Additionally,
several submitters said they would prefer for an intestate estate to become bona
vacantia at an earlier stage.
Chris Kelly submitted that the distribution of an
intestate estate should not extend beyond nieces and nephews before it is
distributed
to the Crown. ADLS submitted that it should not extend beyond aunts
and uncles, and another submitter said that it should not extend
beyond the
intestate’s siblings. The submitters said that it can involve significant
time and resources to find distant relatives.
This may dissipate the value of an
intestate estate, which is particularly significant in a modest estate. One
submitter said that
it is unlikely a person who made a will would distribute it
to distant relatives anyway. For example, under the current regime, it
is
possible for an intestate estate to be passed to grandchildren or
great-grandchildren of cousins of the intestate.
Conclusion
- 7.183 We
recommend that the estate is taken by the Crown as bona vacantia where the
intestate is not survived by a relative closer
than a descendant of their
grandparent.
- 7.184 Additionally,
the Crown should have discretion to distribute any or all of the estate to the
following parties on application:
(a) Dependants of the intestate (whether kindred or not).
(b) Any organisation, group or person for whom the intestate might reasonably be
expected to have made provision.
(c) Any other organisation, group or person.
- 7.185 Discretionary
distribution provisions are a fair solution to the practical difficulties
involved in locating and making decisions
in respect of other relatives. We
recommend that the current provision is extended to include any other
organisation, group or person.
Distribution could be made to trustees for the
parties if necessary. A broad list would allow charities, community groups, and
whānau,
hapū or iwi groups to utilise funds that would otherwise vest
in the Crown. When the intestate is Māori, there is a strong
case for the
Crown to distribute the estate to the intestate’s hapū or iwi, in
recognition of iwi and hapū tino rangatiratanga
and the importance of the
collective in te ao Māori. Māori land records and membership records
from hapū and iwi entities
are readily accessible for this purpose.
- 7.186 The
Treasury should create and publish guidance about its process for considering
applications. Priority should be given to
dependants of the intestate (whether
kindred or not) followed by any by any organisation, group or person for whom
the intestate
might reasonably be expected to have made provision. However, if
no dependants are forthcoming in a reasonable period, the Treasury
should not
delay in distributing any or all of the bona vacantia estate.
- 7.187 As noted,
it is currently rare for estates to vest in the Crown as bona vacantia. However,
this is not the case in all jurisdictions,
particularly where the distribution
rules do not extend to more-remote
relatives.545F[546] We did not
consult on limiting the list of eligible relatives, but we acknowledge that
there are compelling reasons to do this, particularly
where an estate is of
modest value and extensive resources are spent searching for distant relatives.
The few submitters that suggested
limiting the list of eligible relatives had
different views about where the list should end. Further consultation would be
required
to establish a consensus. Should the Government consider limiting the
list of eligible relatives, it would become even more important
for The Treasury
to have transparent processes for considering applications to distribute bona
vacantia estates.
SUMMARY OF THE RECOMMENDED NEW INTESTACY REGIME
Surviving
partner?
Children or descendants?
No
No
Parents?
Children or descendants?
Children or their
descendants take whole estate
Siblings or
their descendants (nieces,
nephews)?
Grandparents?
Aunts/uncles
or descendants (cousins)?
No
No
Partner is the parent of all the intestate’s children:
- Partner takes
whole estate
One or more of the intestate’s children are
of another relationship:
- Partner takes
family chattels and half of the remaining estate
- Children take
other half of the estate in equal shares
Yes
Yes
Yes
No
Parents take whole estate
Siblings or their descendants take whole estate
Estate divided in half according to parental lines.
Estate divided in half according to parental lines.
If no aunts/uncles
or descendants on one side of family, the other side takes whole estate
Everything passes to Crown
No
Yes
Yes
Yes
Yes
START
Surviving partner takes whole estate
No
In all scenarios, a descendant is not eligible to succeed
if their eligible parent is alive
Part Three
MAKING AND RESOLVING CLAIMS AGAINST ESTATES
![2021_14507.png](2021_14507.png)
CHAPTER 8
Awards, priorities and anti-avoidance
IN
THIS CHAPTER, WE CONSIDER:
- the property
from which a court can make awards when someone claims against an estate;
- the respective
priority of awards from an estate; and
- the powers the
court has to make awards from property outside an estate (anti-avoidance
mechanisms).
CURRENT LAW
- 8.1 The
terms of a will determine the distribution of the will-maker’s estate.
Where there is no will, the intestacy regime
in the Administration Act 1969
governs how the deceased’s estate is to be
distributed.546F[547]
- 8.2 Despite the
terms of a will or the intestacy regime, a court may make awards under the
Family Protection Act 1955 (FPA) and Law
Reform (Testamentary Promises) Act 1949
(TPA) from the property of the deceased’s
estate.547F[548] Awards under the
FPA are made from the net estate after creditors’ claims have been
satisfied.548F[549] Awards under
the TPA can be made from the gross
estate.549F[550] Te Kōti
Matua | High Court has held that, in principle, its powers under the TPA provide
the court power to give priority to
a TPA claimant over the creditors of the
estate in some cases.550F[551]
Entitlements in an intestacy are distributed after an administrator has paid the
deceased’s
debts.551F[552]
- 8.3 Awards under
the FPA and TPA fall rateably on the
estate.552F[553] The court has
power to exonerate any part of the estate from an
award.553F[554] Awards under the
FPA may be made as periodic payments or as a lump
sum.554F[555] Likewise, awards
under the TPA may be for the payment of a periodic amount or lump
sum,555F[556] although the court
has the additional power to order that specific property vest in the claimant
where the promise relates to that
property.556F[557]
- 8.4 A surviving
partner’s entitlements under the Property (Relationships) Act 1976 (PRA)
are generally limited to the relationship
property of the
estate.557F[558] The PRA provides
that the rights of creditors generally continue as if the PRA had not been
enacted,558F[559] and each partner
has the right to deal with their property before the court orders a relationship
property division.559F[560] The
exceptions to this general rule include a partner’s right to lodge a
notice of claim over land in which they claim an interest
under the
PRA560F[561] and a partner’s
protected interest in the family home which takes priority over the other
partner’s unsecured
creditors.561F[562]
- 8.5 Those with
successful claims against an estate under other statutes, common law and equity
will be regarded as unsecured creditors
of the estate. As such, they will take
priority over awards under the FPA and PRA (subject to a surviving
partner’s protected
interest in the family home).
- 8.6 Aside from
creditors’ claims, awards under the PRA take priority over awards under
the FPA and TPA.562F[563] The FPA
and TPA do not address which awards are to take priority over the other. The
courts have taken the view, however, that neither
Act takes
priority.563F[564] Rather, the
courts’ approach has been to “resolve the conflict in such manner as
will best meet the justice of the particular
case and produce a just result as
[among] all the
parties”.564F[565]
Property may fall outside an estate
- 8.7 It
is possible, however, that the property the deceased owned during their life
will not fall into their estate. Property that
may fall outside the estate
includes:
(a) property the deceased has gifted before they died, such as transferring
their property to be held on trust;
(b) the deceased’s joint tenancy interests that accrue to the remaining
joint tenant(s) by survivorship when the deceased dies,
such as a home that is
jointly owned with a partner;
(c) a bank account or insurance policy for which the deceased has nominated a
third-party beneficiary to receive property when they
die;
(d) property that is the subject of a binding contract in which the deceased
agreed to provide that property to the other party under
their
will;565F[566] and
(e) powers of appointment or powers to control a trust that have not been
exercised by the deceased during their
lifetime.566F[567]
- 8.8 Situations
may arise when, due to the property falling outside the estate, the estate
contains insufficient property to satisfy
claims against it. The court has
limited powers to bring the property into the estate in order to meet claims
against the estate.
Anti-avoidance mechanisms under the current law
- 8.9 The
PRA contains some “clawback” mechanisms. The court can make an order
to recover property when it was disposed
of with intent to defeat a
partner’s rights.567F[568]
When a disposition of property to a trust or company has a defeating effect but
there has been no intention to defeat, the court
has limited powers to provide
compensation to the affected
partner.568F[569]
- 8.10 The PRA
classifies property passing by survivorship to the surviving partner according
to the status it would have had if the
deceased had not died, meaning joint
tenancy assets owned by the couple do not escape
division.569F[570] However, there
is some uncertainty whether a court can recover property that has passed from
the deceased partner to a third party
through
survivorship.570F[571]
- 8.11 The FPA and
the TPA contain no mechanisms through which the court can award property outside
the estate. However, there are ways
claimants can access that property. In
particular, section 88(2) of the PRA allows the personal representatives, with
the leave of
the court, to apply for a relationship property division on behalf
of the estate. The purpose of division initiated by the personal
representatives
is usually to recover relationship property that was held as joint tenants with
the deceased’s surviving partner
that would otherwise pass to them through
survivorship.571F[572] In most
cases, division is sought to increase the size of the estate to satisfy FPA
claims,572F[573] although leave
has also been sought where there is insufficient property to meet gifts under
the will.573F[574] The
estate’s rights to seek a relationship property division therefore operate
as a clawback mechanism.
- 8.12 In recent
cases, adult claimants have argued that their deceased parent owed them
fiduciary duties to protect their economic
interests, particularly by the
deceased parent providing for the children from their
estate.574F[575] This is relevant
because a court may remedy a breach of fiduciary duty by recognising a
constructive trust in favour of a claimant.
A fiduciary may pass property to a
third party with the effect that the property would not form part of their
estate when they die.
If they passed property to a third party when the third
party knew the disposition breached the fiduciary’s duties, a court
may
find the third party holds the property subject to the constructive trust.
Consequently, claimants can obtain priority to the
property subject to the
constructive trust whether it falls into the estate or not. To date, the courts
have refused to strike out
these claims, instead ordering the claim should be
determined through trial.575F[576]
NGā TIKANGA
- 8.13 In
the Issues Paper, we recognised the importance of weaving tikanga into the
matters we discussed in relation to making and
resolving claims against an
estate. We sought feedback on any other areas where state law ought to recognise
and respond to tikanga.
We received no direct feedback on the implications of
tikanga and kawa for the matters discussed in this chapter, which restricts
our
ability to recommend how tikanga ought to be woven into our recommendations.
Whanaungatanga, mana, kaitiakitanga, aroha and manaakitanga
may be relevant. We
have also been told that many Māori may value certainty, to enable
understanding of the consequences of
their property dealings prior to and after
their death.
- 8.14 The key
issues discussed in this chapter are how the different claims against an estate
should relate to each other in terms
of priority and what property should be
available to meet the claims. As submitters said when addressing matters
concerning te ao
Māori, default sets of rules do not sit happily with
tikanga. We are mindful, however, of the need for the new Act to state
as
clearly as possible from what property a court can make orders and how a court
is to reconcile competing claims to the same property.
Because of these concerns
and because we have received limited feedback in consultation, tikanga is not
expressly part of our recommendations
for reform in this chapter. It should be
noted, however, that whenua Māori and taonga would not be subject to awards
or the
new Act’s anti-avoidance provisions. In addition, as we conclude in
Chapter 13, it is important that Māori have the option
to resolve matters
pursuant to tikanga as an alternative to the new Act and the court
process.
RECOMMENDATIONS IN THE PRA REVIEW
- 8.15 In
the PRA review, we made several recommendations regarding property and
anti-avoidance, including the following:
(a) The notice of claim procedure should be expanded to enable a partner to
lodge a notice of claim on the title of land held on
trust against which the
partner claims under the
PRA.576F[577]
(b) The court’s power to restrain dispositions of property made with
intent to defeat a person’s rights (section 43)
should be replaced by a
broad power for the court to make interim restraining orders consistent with the
court’s interlocutory
injunction
jurisdiction.577F[578]
(c) Sections 44 (empowering the court to recover property disposed of with the
intention to defeat a person’s rights under
the PRA) and 44F (empowering
the court to order compensation in respect of dispositions of property to a
qualifying company with
the effect of defeating rights under the PRA) should
continue unchanged.578F[579]
(d) Section 44C, applying to dispositions of property to trusts, should be
replaced with a new provision that gives the court powers
to grant relief in
respect of trusts where it is “just”
and:579F[580]
(i) either or both partners disposed of property to a trust when the
relationship was in reasonable contemplation or since the relationship
began and
that disposition has defeated the rights of either or both partners;
(ii) trust property has been sustained by the application of relationship
property or the actions of either or both partners; or
(iii) any increase in value of the trust property or benefit derived from the
trust property is attributable to the application of
relationship property or
the actions of either or both partners.
ISSUES
Restricting entitlements and claims to estate property may
limit their effectiveness
- 8.16 The
PRA, FPA and TPA reflect policy choices concerning to whom the deceased owed
duties to provide for on their death. However,
the effectiveness of these
entitlements and claims may be undermined if the deceased avoids those duties by
ensuring property does
not fall into their estate and instead passes to
recipients of their choosing through other means.
- 8.17 There is no
data available that directly indicates the extent of avoidance behaviour.
However, there are some reasons to believe
it is not uncommon:
(a) Cases have come before the courts concerning estates that hold insufficient
property to meet claims because the deceased’s
property passed to others
without falling into the
estate.580F[581]
(b) Data from Toitū te Whenua | Land Information New Zealand shows that, in
recent years, the number of transmissions of interests
in land by survivorship
is roughly equal to the number of transmissions to an executor or administrator
(excluding interests in whenua
Māori). This indicates it is common for the
deceased’s interests in land to pass by
survivorship.581F[582] It should
be noted, however, this data indicates the rates of joint tenancies rather than
revealing the extent to which joint tenancies
have a defeating effect on claims
against estates.
(c) We have heard from lawyers that avoidance behaviour
occurs.582F[583]
(d) During consultation, some submitters shared experiences with us in which the
bulk of the deceased’s property passed to
another without falling into the
estate, thereby defeating family members’ expectations of inheriting that
property.
The current clawback mechanisms are complex and
burdensome
- 8.18 The
mechanism in section 88(2) of the PRA is a multi-step process that can be
convoluted and cause delay. Personal representatives
must obtain leave and issue
proceedings. If the personal representatives are unwilling to seek leave, a
prospective claimant might
first apply to have the court replace the personal
representatives.583F[584] If the
personal representatives do seek leave and they are successful, the process of
dividing relationship property can be long
and complex. A full division of
relationship property can be a disproportionate response when only a modest
amount of property falling
outside an estate is needed to satisfy obligations to
beneficiaries or claimants. It can therefore frustrate the deceased’s
testamentary intentions and cause unnecessary costs to the estate. Personal
representatives may find themselves in difficult situations
having to disregard
the will and seek division on behalf of claimants.
- 8.19 The recent
cases concerning fiduciary duties owed to children to provide for them on death
have left the law uncertain. In A v D, the Court applied conventional
principles of fiduciary law in the context of an abusive parent-child
relationship and knowing receipt
by
trustees.584F[585] The development
of this area of law is likely to be quite specific and fall outside our review.
Rule v Simpson, on the other hand, is not so limited. The plaintiff
argued that a parent generally owes fiduciary duties to care for and protect
a
child’s economic interests. If the claim had gone on to be successful at
trial,585F[586] it may have
established much broader fiduciary duties on parents to provide for their
children on death.586F[587]
RESULTS OF CONSULTATION
Issues
- 8.20 Several
submitters, including Te Kāhui Ture o Aotearoa | New Zealand Law Society
(NZLS), the Family Law Committee of Auckland
District Law Society (ADLS),
Chapman Tripp, MinterEllisonRuddWatts and Jan McCartney QC broadly agreed with
the issues we discussed
in the Issues Paper. NZLS cautioned, however, that
change to the law in this area has the potential to increase litigation and
uncertainty.
NZLS stressed that any reform should promote reasonable
predictability for decisions and transactions a person may make prior to
death.
Property claimable
- 8.21 In
the Issues Paper, we proposed that awards should be available in relation to
certain entitlements and claims against an estate:
(a) The court should have power to grant a surviving partner their share of
relationship property that they would otherwise have
been entitled to under the
PRA had the partners separated during their lives (relationship property
awards).
(b) A court should have power to make family provision awards to a surviving
partner and certain children of the deceased in place
of its powers currently
arising under the FPA (family provision awards).
(c) A court should have power to make awards under the single, statutory cause
of action we had proposed for contributions made to
the deceased or estate
(contribution awards). Contribution awards would replace any award arising under
common law and equity that
a claimant would otherwise have been able to claim.
We have now concluded, in Chapter 6, that the option for a single statutory
cause
of action for contribution awards should not be introduced. Rather, a
testamentary promise cause of action based on the existing
law under the TPA,
with some amendments, should be restated within the new Act. Causes of action
arising under common law and equity
in respect of contributions to a deceased
should continue to apply outside the Act.
- 8.22 We then
made the following proposals in the Issues Paper for which property should be
used to meet awards under the new Act:
(a) Relationship property awards should be sourced from relationship property
assets of estates, subject to the court’s discretion
to order that the
award be met from the whole or part of the estate.
(b) Family provision awards should fall rateably against the whole estate
subject to the court’s discretion to order that the
award be met from only
part of the estate.
(c) Contribution awards may take several forms. We proposed the court should
have power to make awards in respect of specific property.
Alternatively, the
court should have power to make monetary awards rateably against the whole
estate, subject to a discretion to
order that the award be met from only part of
the estate.
- 8.23 If the
estate has insufficient property to meet an award, we proposed a court could
make awards from the property it recovers
through its clawback powers. This
would depend on what anti-avoidance mechanisms are included in the new Act,
which is addressed
below.
- 8.24 Most
submitters who commented on these proposals broadly agreed. They included Public
Trust, NZLS, ADLS and MinterEllisonRuddWatts.
Some submitters made comments on
what should constitute an estate for the purposes of entitlements in an
intestacy. We discuss further
what property should be available for distribution
in an intestacy in Chapter 7.
Priorities
- 8.25 Submitters
generally agreed with the position in the Issues Paper that creditors’
claims should take priority over awards
under the new Act. We also proposed that
the court should have discretion to order that specific property of the estate
be awarded
to meet contribution claims in priority to unsecured creditors
when:
(a) the deceased promised to transfer that property to the claimant; or
(b) the property has been provided or improved by the claimant or it is the
proceeds of sale or exchange of that property or is property
acquired with the
proceeds of sale or exchange.
- 8.26 Public
Trust and MinterEllisonRuddWatts expressly agreed with this proposal, although
McCartney disagreed that an award to a
contribution claimant should be capable
of ranking above an unsecured creditor.
- 8.27 We proposed
in the Issues Paper that, if an estate has insufficient property to fully
satisfy relationship property awards, family
provision awards and contribution
awards, the property of the estate should be applied to satisfy claims in the
following order of
priority:
(a) To meet contribution awards.
(b) To meet relationship property awards.
(c) To meet family provision awards.
- 8.28 Submitters
generally agreed with this order of priority. NZLS noted that contribution
claims could encompass proprietary interests
that would be recognised by a court
under the current law through a constructive trust or similar remedy and that
such interests
should be given priority.
- 8.29 Bill
Patterson and McCartney emphasised that cases involving claims against estates
are very fact specific. Rather than a fixed
order of priority, they favoured a
discretionary approach that would allow the court to determine priorities
between competing claims
on a case-by-case basis.
Anti-avoidance
- 8.30 Some
submitters to the consultation website shared experiences in which the bulk of a
deceased’s property had passed to
another without falling into the estate.
For example, one submitter spoke of an instance where funds held in a joint
account with
an elderly person passed to the other person named on the account.
Another submitter explained how a deceased had made considerable
gifts during
their lifetime to defeat claims against their estate.
- 8.31 Some
submitters to both the consultation website and the Issues Paper were concerned
at the ease in which the current law allows
people to avoid obligations to
family by structuring their affairs in a way to pass on property without it
forming part of their
estate. The use of trusts and joint tenancies were
examples of defeating mechanisms that were frequently mentioned. Some
submitters,
however, took the opposite view. They strongly discouraged the
introduction of mechanisms that could unwind what they saw as carefully
considered and legitimate estate planning structures.
- 8.32 In the
Issues Paper, we proposed three options for addressing dealings with property
resulting in insufficient property in an
estate to meet awards under the new
Act:
(a) Option One: Maintain the current law.
(b) Option Two: A limited clawback approach targeted at:
(i) dispositions of property the deceased made with intent to defeat an
entitlement or claim under the new Act;
(ii) dispositions of property the deceased made within five years of their death
that have the effect of defeating an entitlement
or claim under the new Act;
and
(iii) situations where the deceased owned property as joint tenants with another
and the deceased’s interest has passed by
survivorship on their
death.
(c) Option Three: A comprehensive clawback approach that would target all
property the deceased could have retained or reclaimed
during their lifetime so
that the property would have been available to meet claims against their estate
when they died.
- 8.33 Under
Option One, we proposed that the personal representatives’ rights to seek
a division of relationship property would
continue for the purpose of accessing
relationship property assets from the surviving partner. For Option Two and
Option Three, however,
we proposed the removal of personal
representatives’ rights to seek a relationship property division on behalf
of the estate.
We observed that a relationship property division is often sought
in order to recover property that has passed by survivorship to
the surviving
partner. The better approach, we suggested, was to allow claimants to apply for
the clawback of particular property
if Option Two or Option Three were favoured
rather than having to rely on the personal representatives to initiate a
relationship
property division.
- 8.34 Feedback
from submitters to the Issues Paper was mixed. Six submitters favoured Option
One. They included Perpetual Guardian,
NZLS and several lawyers. Their main
concern was that new anti-avoidance mechanisms would create uncertainty. Many
submitted that
Option Two and Option Three would cause estate planning measures
to be set aside too lightly, noting that often a deceased will have
structured
their affairs with care to provide for family members.
- 8.35 Six
submitters supported Option Two, including Public Trust and several lawyers.
Most explained the option balances freedom for
the deceased to structure their
property affairs as they would like and preventing the deceased from avoiding
obligations to provide
from their estate. Some submitters, however, criticised
this option. Some thought that setting a transaction aside because it was
made
in order to defeat entitlements and claims under the new Act is too uncertain or
could lead to transactions being set aside
too easily. TGT Legal supported the
option but did not favour allowing dispositions of property to be clawed back
simply because
they had a defeating effect. They preferred a focus on
transactions that were made with an intent to defeat.
- 8.36 ADLS said
it agreed with Option Two and Option Three. It was the only submitter to express
support for Option Three.
- 8.37 Several
submitters agreed that personal representatives’ ability to seek leave on
behalf of the estate under section 88(2)
of the PRA to divide relationship
property was problematic. They supported its repeal, instead enabling affected
claimants to apply
directly to the court to claw back property. Public Trust and
ADLS, on the other hand, submitted that the right of the estate to
divide
relationship property should be retained to enlarge the estate to meet claims.
- 8.38 Lastly, we
proposed in the Issues Paper that a surviving partner should have a right under
the new Act to lodge a notice of claim
over land held in the estate to protect a
relationship property interest, similar to partners’ current rights to
lodge notices
of claim under the
PRA.587F[588] Public Trust and
ADLS supported the proposal. No submitter opposed it.
CONCLUSIONS
Property claimable
RECOMMENDATIONS
R52
A surviving partner’s relationship property entitlements under the new
Act should be met from the relationship property of the
estate. The court should
have discretion to order that the entitlements be met from the whole or part of
the estate.
R53
Family provision awards should be met rateably against the whole estate. The
court should have discretion to order that awards are
met from only part of the
estate.
R54
Testamentary promise awards should be met rateably against the whole estate.
The court should have discretion to order that awards
are met from only part of
the estate.
Relationship property claims
- 8.39 We
have recommended in Chapter 4 that a “top-up” approach is
appropriate when a partner elects to take their relationship
property
entitlements on the death of their
partner.588F[589] We recommend
that a court should source any property needed for the top-up from relationship
property assets of the estate because
this is the property attributable to the
relationship. Submitters supported this approach.
- 8.40 The court
should also, however, be able to order that the top-up award be met from the
whole or part of the estate. The court
has discretion under the current law to
order that an award falls on a specific portion of the
estate.589F[590] This may be
appropriate when, for example, the surviving partner should receive additional
compensation beyond their interest in
items of relationship
property.590F[591] The court could
also order that awards be sourced in a way that is least likely to disrupt the
other beneficiaries’ interests
and the deceased’s testamentary
intentions (where there is a will). This discretion should be in addition to the
court’s
powers we discuss in Chapter 4 to depart from the top-up approach
altogether and award specific items of relationship property to
the surviving
partner instead of the gifts under the will.
- 8.41 A court
should have further powers to make awards from the property it recovers through
its anti-avoidance powers (see discussion
on anti-avoidance below).
Family provision claims
- 8.42 In
Chapter 5, we recommend that the court should have power to make family
provision awards to certain family members, including
surviving partners. We
present two options under which children and grandchildren of the deceased
should be eligible to claim.
- 8.43 For all
family provision awards, regardless of which option for reform in relation to
children and grandchildren is implemented,
we recommend that awards should be
met rateably against the whole estate, with the court having the discretion to
order that awards
be met from only part of the estate. This is the position
under the current law. It gives the court a high degree of flexibility
to make
awards from property in a way that is least likely to disrupt the other
beneficiaries’ interests and the deceased’s
testamentary intentions
(where there is a will). Submitters supported this approach.
- 8.44 A court
should be able to make awards from the property it recovers through its
anti-avoidance powers (see discussion on anti-avoidance
below).
Testamentary promise claims
- 8.45 We
recommend that testamentary promise awards under the new Act should be met
rateably across the entire estate, with the court
having discretion to order
that awards be met from only part of the estate. In addition, we recommend that
the court’s current
powers under the TPA to award specific property should
continue where the deceased’s promise related to that
property.591F[592] Like our
approach to family provision, this recommendation continues the current law and
gives the court flexibility.
- 8.46 A court
should be able to make awards from the property it recovers through its
anti-avoidance powers (see discussion on anti-avoidance
below).
Priorities
RECOMMENDATIONS
R55
Creditors’ rights should take priority over all entitlements and claims
under the new Act.
R56
If an estate has insufficient property to fully satisfy relationship property
awards, family provision awards and testamentary promise
awards, the new Act
should give relationship property awards priority. The new Act should not
prescribe an order of priority between
family provision awards and testamentary
promise awards but instead enable the court to determine priority in each case.
Relationship between creditors’ rights and entitlements
and claims against the estate under the new Act
- 8.47 We
recommend that creditors’ rights should take priority over all
entitlements and claims under the new
Act.592F[593] This approach will
extend the rule in the PRA that creditors’ rights are generally unaffected
by the PRA. It is also consistent
with the current position that FPA awards are
made from the net estate. Those with successful claims against an estate under
other
statutes, common law and equity will continue to be regarded as unsecured
creditors of the estate.
- 8.48 We note
this approach departs from the current position under the TPA. We take the view
that testamentary promises awards under
the new Act should rank behind
creditors’ claims and be made from the net estate for the following
reasons:
(a) The TPA itself is not clear on whether a claim under the Act can rank over
creditors’ claims, and the courts have expressed
divided
views.593F[594] Stating that
testamentary promise awards rank behind creditors will bring clarity and resolve
the position. If, on the contrary,
the new Act gave testamentary promise awards
priority in certain circumstances, the new Act would need to guide the court
when priority
should be given, which could lead to uncertainty.
(b) We understand that, in practice, personal representatives will discharge the
estate’s debts before considering a TPA claim.
(c) If there are estates in which TPA claims are considered alongside
creditors’ claims, giving creditors priority will make
the resolution of
creditors’ claims quicker.
(d) This is a default rule to rank TPA claims. Greater priority can be achieved
through contract or other proprietary arrangement.
- 8.49 In the PRA
review, we recommended that the Government should undertake further policy work
in relation to the provision of a
protected interest in the family
home.594F[595] If the Government
concludes that a partner should continue to have a protected interest in certain
property that takes priority over
unsecured creditors, we recommend that the
protected interest should be available to a surviving partner under the new Act.
Priorities among the different entitlements and claims in the
new Act
- 8.50 If
an estate has insufficient property to fully satisfy relationship property
awards, family provision awards and contribution
awards, we recommend that the
property of the estate should be applied to satisfy relationship property awards
in the first instance.
Remaining property should be used to satisfy testamentary
promise awards and family provision awards. We recommend that the new Act
should
not state an order of priority between testamentary promise awards and family
provision awards but rather give the court discretion
to allocate priority in
each case.
- 8.51 This order
of priority continues the primacy given to relationship property entitlements
under the current law. We consider it
is appropriate to give priority to
relationship property entitlements above testamentary promise awards because, in
most qualifying
relationships, the surviving partner’s contributions to
the relationship will be more extensive than the work or services the
testamentary promise claimant rendered to the deceased. Further, a testamentary
promise is personal to the deceased. Giving relationship
property awards
priority will ensure testamentary promise awards are met from the
deceased’s share of relationship property
and not borne by the partners
jointly.
- 8.52 There may,
however, be cases where the work or services a testamentary promise claimant has
provided to the deceased may have
preserved or enhanced the couple’s
relationship property. A surviving partner claiming relationship property may
therefore
receive a windfall from the contributions of the claimant.
Nevertheless, we do not consider the priorities should be reversed in
these
instances. If the deceased had honoured their promise to the claimant, whatever
provision is made for them under the will would
be subject to the surviving
partner’s relationship property entitlements. It would be odd if a greater
priority could be obtained
because the deceased had not fulfilled their promise.
Instead, a claimant would need to bring an alternative claim to obtain priority
over relationship property entitlements, such as breach of contract, quantum
meruit or claiming a constructive trust where the factual
situation supports
such a claim.
- 8.53 There are
several reasons relationship property awards should rank higher than family
provision awards:
(a) Relationship property awards recognise the entitlement the surviving partner
has to a share in the couple’s relationship
property because of their
contributions to the relationship. This entitlement should therefore qualify
what property can legitimately
be called the “deceased’s
property” from which family provision awards can be made.
(b) After a relationship property division, half the relationship property held
in the estate should generally remain. Family provision
claims can be met from
this property.
(c) If the surviving partner is the parent of the deceased’s children, the
law imposes obligations on that partner to maintain
the children while they are
young. Giving the surviving partner priority is unlikely to result in the
children going without provision.
If the surviving partner is not the
children’s parent, the children could potentially look to their other
parent(s) for maintenance
in addition to whatever family provision awards can be
made from the remaining estate.
(d) Relationship property awards currently rank higher than FPA
awards.595F[596] We are not aware
of criticism of this approach.
- 8.54 We
recommend that the new Act should express no order of priority between
testamentary promise awards and family provision awards
but instead enable the
court to determine priority on a case-by-case basis. This approach continues the
current law.596F[597] As noted by
several submitters, there is likely to be diversity in the nature of
testamentary promise and family provision claims.
It is helpful for the court to
have flexibility to assess the merits of the respective clams. We would expect
the court to consider
factors like the extent of the work or services a
testamentary promise claimant provided to the deceased and the needs of family
provision claimants.
- 8.55 Similarly,
if there is more than one testamentary promise award or more than one family
provision award, we recommend that the
new Act should state no order of priority
but instead refer the matter to the discretion of the court.
RECOMMENDATIONS
R57
R58
R59
R60
Anti-avoidance mechanisms
Where there is insufficient property in an estate
to meet all entitlements and awards under the new Act, the Court should have
power
to recover property to the estate from a third party when that
property:
- has
been disposed of with intent to defeat an entitlement or claim under the new
Act; or
- was
owned by the deceased as joint tenant and it has accrued to the remaining joint
tenant(s) by virtue of survivorship with the effect
of defeating an entitlement
or claim.
The court should have power to order that:
- the
recipient of the property transfer the property or part of it to vest in the
estate; or
- the
recipient of the property pay reasonable compensation to the
estate.
The court should not order the recovery of the property or the payment of
compensation if the recipient of the property received it
in good faith and
provided valuable consideration. The court should have discretion whether to
order the recovery of property or
the payment of compensation where the
recipient received it in good faith and it is unjust to order that the property
be recovered.
Claimants under the new Act should be able to apply to the court directly for
the recovery of property from a third-party recipient.
Personal
representatives’ rights to apply for a division of relationship property
on behalf of the estate should be repealed.
R61
R62
A surviving partner should retain the additional rights they have to recover
property to satisfy relationship property claims based
on recommendations in the
PRA review (R58–R66).
A surviving partner should be able to lodge a notice of claim over land of
the estate in which they claim a relationship property
interest.
- 8.56 Anti-avoidance
mechanisms must balance the competing policy objectives of:
(a) respecting the deceased’s right to structure their property affairs as
they wish and third parties’ rights to rely
on those structures; and
(b) ensuring sufficient property is available to meet entitlements and
successful claims.
- 8.57 In
addition, as stressed by several submitters, the law should lead to predictable
outcomes. Predictable outcomes enable people
to understand the legal
consequences of their property dealings prior to and after their death. It is
also important to minimise
the risk of disputes and consequent costs and delays
in the administration of estates.
- 8.58 The extent
of the anti-avoidance provisions in the new Act should reflect a decision as to
which policy objectives are considered
to be of greatest importance. We note the
considerable difference of opinion expressed in the submissions we received on
this question.
- 8.59 We conclude
that having no or limited ability to recover property from outside the
deceased’s estate undermines the rights
the new Act would purport to give
claimants. Some form of anti-avoidance is therefore justified. This review
provides an opportunity
to address the issue and consider the best form that
anti-avoidance mechanisms could take. We therefore recommend the new Act contain
provisions that would enable the court to recover property where the
property:597F[598]
(a) has been disposed of with intent to defeat an entitlement or claim under the
new Act; or
(b) was a property interest the deceased owned as joint tenant that has accrued
to the remaining joint tenant(s) by virtue of survivorship
with the effect of
defeating an entitlement or claim.
- 8.60 The first
ground is based on the long-standing provisions that enable dispositions of
property to be set aside in the PRA and
the Property Law Act
2007.598F[599] Some submitters
raised the question of how the test applied in Regal Castings v Lightbody
would apply in this
context.599F[600] In that case, te
Kōti Mana Nui | Supreme Court equated knowledge of the defeating effect of
a transaction with an intention
to bring it about. NZLS and Jan McCartney QC
believed the Regal Castings test could work in this context. TGT Legal
noted that, unlike the PRA and the Property Law Act, the clawback may not relate
to quantifiable
entitlements. Therefore, the Regal Castings test may not
be applicable or appropriate as the threshold may be too low. TGT Legal noted,
however, that they expected this is something
the courts would examine when
cases arise.
- 8.61 In our
view, the Regal Castings test is applicable to entitlements and claims
under the new Act. Testamentary promise and family provision awards will be
discretionary
in nature. However, we expect that a person may dispose of
property knowing the transaction would defeat an entitlement or claim
against
their estate, even if they are not sure about the exact amount a court would
likely grant as an award. In response to concerns
that the threshold may be too
low, we note that the recipient of the property may be able to rely on the
defences set out below to
prevent recovery.
- 8.62 The second
ground is joint tenancy interests that accrue by survivorship. When a joint
tenant dies, their interest in the property
is extinguished and the interest of
the remaining joint tenant(s) is correspondingly
enlarged.600F[601] Situations
arise where any surviving joint tenant receives the benefit of a property
interest that the deceased could have reclaimed
into their estate by severing
the joint tenancy prior to their death. For this reason, joint tenancies are a
mechanism for ensuring
a designated person receives a benefit from the deceased
in a similar way to if the deceased had made a gift in their will to that
person. Joint tenancies are therefore a way in which entitlements to and claims
against a deceased’s estate may be defeated.
- 8.63 We note,
however, that a joint tenancy arrangement can be very different to dispositions
with intent to defeat. The parties may
have acquired property as joint tenants
for perfectly legitimate reasons. Nevertheless, we have included joint tenancy
interests
accruing by survivorship as a specific ground for recovery owing to
their prevalence. This is seen in the case law and was particularly
mentioned by
submitters.601F[602] Additionally,
we note that unfairness to the surviving joint tenant can be avoided if the
survivor is able to invoke the defences
to recovery we discuss below.
- 8.64 When either
ground applies, the court should have power to order
that:602F[603]
(a) the recipient of the property transfer the property or part of it to the
estate; or
(b) the recipient of the property pay reasonable compensation to the
estate.
- 8.65 For the
purposes of these provisions, property should include the proceeds of sale or
exchange or, if the property is money,
other property bought with that
money.603F[604] This would enable
tracing of the property, subject to the protections for recipients discussed
further below.
- 8.66 The court
would only recover the property necessary to satisfy the award it wished to make
under the new Act. Third-party recipients
from whom the property is sought would
need to be joined as parties to the
proceeding.604F[605]
- 8.67 We
acknowledge the concern raised by some submitters that the introduction of
anti-avoidance provisions of this nature will create
uncertainty. We make
several observations in response:
(a) As noted, the extent of the court’s powers to address transactions and
arrangements that defeat claims reflects the importance
given to the awards. In
our view, it is problematic for legislation to provide rights that can be so
easily avoided.
(b) Without anti-avoidance provisions expressed in the new Act, claimants are
still likely to seek priority in other ways. Recent
claims for breach of
fiduciary duty and constructive trusts over express trusts demonstrate that
claimants are willing to make, and
the courts are receptive towards, innovative
arguments to recover property a person has alienated from their personal
estate.605F[606] Uncertainty will
persist in some form whether anti-avoidance provisions exist within the new Act
or not. The inclusion of express
anti-avoidance provisions should limit the
extent to which courts feel required to develop alternative remedies, thereby
providing
more certainty.
(c) As noted below, we consider that relying on personal representatives to
apply for a relationship property division is a problematic
anti-avoidance
mechanism and should be repealed. It would be unsatisfactory to remove this
avenue of recovery without replacing it
with a more principled device.
(d) Lastly, depending on what reforms are introduced for family provision
awards, there is potential that few anti-avoidance claims
will be made in
practice. One option we have proposed is for family provision awards to be
restricted to surviving partners, children
under 25 and disabled children. Adult
children would be unable to make claims and, consequently, would be unable to
apply to recover
property outside an estate.
Defence to an application to recover property
- 8.68 Importantly,
the court should not order the recovery of property under the anti-avoidance
provisions if a recipient of the property
received it in good faith and provided
valuable consideration. This defence should apply when the recipient received
the property
from the deceased or when they received it through a subsequent
transaction. Alternatively, the court should have discretion whether
to order
the recovery of property where the recipient received it in good faith, and it
is unjust to order that the property be recovered.
- 8.69 Similar
defences apply in relation to the PRA and Property Law Act’s
anti-avoidance provisions on which our recommendation
is based. Drawing on the
law that has developed under these statutes, “valuable
consideration” should constitute more
than nominal consideration, which
would be sufficient to support a contract, but without needing to equate to the
value of the property
received.606F[607] In the case of
a joint tenancy, the court would need to determine whether the surviving joint
tenant has provided valuable consideration
across the duration of the joint
tenancy to support the deceased’s non-severance of the joint tenancy prior
to their death.607F[608] This
would require the court to consider matters such as contribution of funds to the
purchase price, responsibilities for maintaining
the property and servicing
debt.
- 8.70 When the
recipient has not provided valuable consideration, they may still be protected
where they have received the property
in good faith and it would be unjust to
order that the property be recovered. This test differs from the traditional
formulation,
which contains the additional requirement that recipients must have
altered their position. We prefer a broader and more flexible
approach to
address the diverse range of circumstances that may come before the court.
- 8.71 These
defences could protect recipients who received the property in circumstances
where it may be inappropriate for the court
to order recovery, such as donations
to charity.
Relationship between anti-avoidance and contracting out
agreements
- 8.72 In
Chapter 10, we discuss contracting out agreements. Contracting out agreements
are agreements through which partners decide
what provision someone receives
from an estate rather than under the rules of the new Act. It is possible that,
under an agreement,
a party would receive more property than they would be
entitled to had they claimed under the new Act. As a result, the agreement
may
have a defeating effect on parties who would otherwise claim against the
property disposed of under the agreement. We therefore
recommend that property a
party claims title to pursuant to the terms of a contracting out or settlement
agreement be recoverable
if it fits within the grounds for recovery under the
anti-avoidance mechanism in R57.
Personal representatives’ ability to apply for
relationship property division should be repealed
- 8.73 Claimants
should have the right to apply to the court directly for clawback orders if
there was insufficient property in the
estate to meet their entitlements or
claims under the new Act. This would avoid the need for personal representatives
to seek relationship
property divisions to meet claims. We therefore recommend
the repeal of personal representatives’ rights under section 88 of
the PRA
to apply for a division of relationship property on behalf of the estate.
- 8.74 While we
recognise personal representatives may sometimes seek division to ensure there
is sufficient property in the estate
for the gifts the deceased purported to
make under their will, we do not consider a full division of relationship
property is a principled
or proportionate response. Rather, the better approach
is for will-makers to ensure their wills provide gifts that are capable of
being
made from the estate. Education for will-makers and adequate professional advice
should help (see our proposals in Chapter
16 regarding the need for education).
Further, we do not consider it desirable to allow personal representatives to
claw back property
on behalf of beneficiaries if the gifts under the will cannot
be made from the estate. Aspects of the deceased’s succession
planning
regarding property outside their estate should not be undone to compensate for
deficiencies in other aspects of their succession
planning. Instead, the
clawback mechanisms should only be available to claimants for whom the new Act
has established a basis to
recover property outside the estate despite the
deceased’s intentions.
Surviving partner’s additional rights under the PRA
retained
- 8.75 A
partner seeking relationship property division should retain rights to apply for
relief through the additional remedies in
the PRA, including the revised section
44C in respect of dispositions to trusts recommended in the PRA
review.608F[609]
- 8.76 Likewise,
we recommend that a surviving partner should retain the right to lodge a notice
of claim in respect of relationship
property claims under the new
Act.609F[610] The notice could be
lodged against land of the estate and land that could be recovered through the
anti-avoidance provisions. The
few submitters who addressed this issue supported
the proposal.
A more extensive anti-avoidance regime should not be
introduced
- 8.77 We
have considered whether to recommend the third option presented in the Issues
Paper to introduce a more comprehensive anti-avoidance
regime. We have decided
not to make this recommendation for two primary reasons. First, the option
received very little support during
consultation. Second, we note that few
jurisdictions have implemented similar regimes. In Australia, the Uniform
Succession Laws
project610F[611]
recommended all states and territories adopt a “notional estate”
approach whereby certain property falling outside the
estate is deemed to be
part of the estate for the purpose of meeting family provision
claims.611F[612] However, to date,
New South Wales is the only Australian state or territory that has adopted this
recommendation.612F[613] Several
other state law reform bodies have rejected it on the basis that there is
insufficient evidence of a problem and a notional
estate approach is a
significant incursion into property
rights.613F[614] In Canada, a
small minority of jurisdictions have adopted a notional estate-style
regime.614F[615] Most
jurisdictions have limited or no mechanisms to claim against property outside an
estate. England and Wales have a fairly extensive
notional estate-style
regime,615F[616] but the Scottish
Law Commission strongly recommended against
it.616F[617]
CHAPTER 9
Use and occupation orders
IN THIS CHAPTER,
WE CONSIDER:
- the law enabling
a court to grant occupation orders, tenancy orders and furniture orders (use and
occupation orders) over property
of an estate, such as housing, furniture and
other household items.
CURRENT LAW
- 9.1 Personal
representatives are required to distribute a deceased’s estate according
to the deceased’s will or according
to the intestacy regime. There may,
however, be individuals who relied on the deceased for housing or furniture and
other household
items. If the deceased’s will or an intestacy does not
provide for these individuals, the distribution of the estate may require
them
to relinquish possession of the property. The law provides several ways in which
a court may award certain individuals use and
occupation orders notwithstanding
the requirements of the will or the intestacy
regime.617F[618]
Occupation orders under the PRA
- 9.2 Section
27 of the Property (Relationships) Act 1976 (PRA) enables the court to grant a
partner occupation of the family home or
other premises forming part of the
relationship property (an occupation order). In proceedings following the death
of one partner,
an order enables the surviving partner to occupy the premises to
the exclusion of any other person who would otherwise be entitled
to occupy the
premises.618F[619]
- 9.3 There is no
mechanism under the PRA for the deceased’s children to apply for an
occupation order. Only a partner may apply.
However, when determining whether to
grant an occupation order to a partner, the court must have particular regard to
the need to
provide a home for any minor or dependent child of the
relationship.619F[620]
- 9.4 The court
may require a partner to pay occupation
rent.620F[621] The purpose of
occupation rent is to compensate for the denied or delayed access for those
entitled to the
property.621F[622]
- 9.5 The case law
shows that the courts generally grant occupation orders for short
periods.622F[623]
Tenancy orders under the PRA
- 9.6 Section
28 of the PRA empowers the court to vest the tenancy of a dwellinghouse in a
partner (a tenancy order). When a partner
dies, the court may only make the
order if:623F[624]
(a) the tenancy has vested in either the personal representative of the deceased
or the surviving partner; and
(b) the surviving partner is residing in the dwellinghouse or at the date of
death and the deceased partner was the sole tenant of
the dwellinghouse or a
tenant in common with the surviving partner.
- 9.7 As with
occupation orders, the court must have particular regard to the need to provide
a home for any minor or dependent child
of the
relationship.624F[625]
- 9.8 Tenancy
orders will rarely be made when a partner dies. If the tenancy is in the names
of both partners, it is likely the surviving
partner will be able to continue
the tenancy without the need for orders from the court. If, however, the
deceased was the sole tenant
under a residential tenancy, it is likely the
tenancy will terminate on their
death.625F[626]
Furniture orders under the PRA
- 9.9 Section
28B of the PRA enables the court to grant a partner the use of furniture,
household appliances and household effects (a
furniture order) in a home to
which the court has granted an occupation order under section
27.626F[627]
- 9.10 Section 28C
of the PRA allows the court to grant a partner exclusive possession of
furniture, household appliances and household
effects (a furniture order)
independently of any occupation order made under section 27. The court will only
grant an order if it
is satisfied the items are reasonably required to equip
another dwellinghouse in which the partner will be
living.627F[628] The court may
make an order for such a period and on such terms as it sees
fit.628F[629] The court must have
particular regard to any need of the applicant partner for the items to provide
for the needs of any children
of the relationship where those children live or
will be living with the
partner.629F[630]
Occupation orders under the FPA
- 9.11 The
Family Protection Act 1955 (FPA) contains no provisions expressly empowering the
court to grant a claimant use or occupation
orders over property in the estate.
Nevertheless, there are instances where the court has granted occupation rights
under section
4 of the FPA to ensure “adequate provision” is made
for the claimant.630F[631] More
often, however, rather than grant specific occupation rights, the court will
award a portion of the estate or capital from the
estate to ensure the claimant
can retain the deceased’s home or obtain alternative
accommodation.631F[632]
NGā TIKANGA
- 9.12 In
the Issues Paper, we recognised the importance of weaving tikanga into the law
relating to how to make and resolve claims
against an estate and sought feedback
on where state law ought to recognise and respond to tikanga and any kawa
necessary to enliven
that tikanga. We did not receive any submissions that
commented expressly on tikanga relevant to use and occupation orders, although
submitters raised several matters of relevance.
- 9.13 When a
whānau member needs accommodation or requires household items following the
death of someone on whom they relied,
we expect tikanga relating to
whanaungatanga, manaakitanga and aroha would respond to ensure that
person’s needs are met, particularly
tamariki. As explained by Chapman
Tripp in their submission, whanaungatanga recognises the familial and relational
ties that exist
in te ao Māori.
- 9.14 We expect
this to be the case even if the whānau member in question lacked a
whakapapa connection to the deceased and the
estate. Chapman Tripp observed
that, although whakapapa is an important base for whanaungatanga, there are
other relationships built
on compassion that ought to also carry the same
expectations of care and reciprocity. Te Hunga Rōia Māori o Aotearoa
(THRMOA)
commented that Te Ture Whenua Maori Act 1993 (TTWMA) “has largely
got this right” in the context of Māori land.
(Under TTWMA, a
surviving partner may take a life interest and is entitled to receive certain
benefits from the estate, even though
they cannot succeed to the land
itself.)632F[633]
- 9.15 Lastly, we
expect tikanga would shape the process through which a whānau
member’s rights to use and occupy property
of the estate are determined.
Submitters stressed that default rules may not sit well with tikanga. Rather,
outcomes are reached
through kōrero among the whānau.
RECOMMENDATIONS IN THE PRA REVIEW
- 9.16 In
the PRA review, we made several recommendations to elevate children’s
interests in relation to use and occupation orders.
Those recommendations
included the following:
(a) There should be a presumption in favour of granting a temporary occupation
or tenancy order on application by a principal caregiver
of any minor or
dependent children of the relationship. A court may decline to make an order if
the respondent partner satisfies
the court that an application is not in the
child’s best interests or would otherwise result in serious
injustice.633F[634]
(b) In some circumstances, the family home should be classified as separate
property.634F[635] The
court’s power to grant occupation orders should extend to the family home
regardless of whether it is relationship property
or separate
property.635F[636] There should
also be a limited jurisdiction to grant occupation orders over property held on
trust where either or both partners
or any child of the relationship are
beneficiaries of the trust or either or both partners are
trustees.636F[637] The court
would, however, retain discretion to withhold an order, having regard to the
circumstances of the trust, including the
interests of other
beneficiaries.637F[638]
(c) There should be express reference to the court’s powers to award
occupation rent when appropriate in the circumstances
as a condition of any
occupation order.638F[639]
However, there should not be guidance for how a court should calculate
occupation rent. The decision will depend on many factors,
and the court should
have broad discretion to take all relevant matters into account.
(d) The court’s power to grant furniture orders should be extended to
other types of property that would come under the new
definition of family
chattels.639F[640]
(e) The court should not take into account any misconduct of a partner when
considering whether to grant an occupation, tenancy or
furniture order unless
that misconduct amounts to gross misconduct that has significantly affected the
extent or value of the relationship
property.640F[641]
ISSUES
- 9.17 In
the Issues Paper, we highlighted several issues with the current law. First, the
current law provides no express power for
the minor or dependent children of the
deceased or their principal caregiver to seek a use or occupation order.
Currently, if the
children’s accommodation interests and needs are
inadequately provided for under the will or in an intestacy, they must rely
on
the surviving partner to apply for an order under the
PRA.641F[642] There may be
instances, however, where the surviving partner is unwilling to apply, or the
surviving partner is not the principal
caregiver of the children.
- 9.18 There is an
obligation under the United Nations Convention on the Rights of the Child (the
UNCROC), to which Aotearoa New Zealand
is a signatory, that, in matters
affecting children, the best interests of the child shall be a primary
consideration.642F[643] To ensure
compliance with the UNCROC, the law should make better provision for the use and
occupation rights of the deceased’s
minor children following the death of
their parent.
- 9.19 Second,
under the current law, the court’s powers to grant occupation orders to a
surviving partner only extend to the
family home and other property forming part
of the relationship property. As explained in the PRA review, in many instances,
the
couple’s family home may not be relationship
property.643F[644] For instance,
the home may be held on a trust connected with the family. If the
recommendations in the PRA review are implemented,
the family home may be one
partner’s separate property.
- 9.20 It is
important that the court has adequate powers beyond relationship property to
ensure partners do not suffer hardship immediately
after the death of their
partner. The surviving partner will often be an older person with limited means
and therefore may be particularly
vulnerable if they are required to find
alternative accommodation soon after the death of their partner. While the new
Act will provide
a surviving partner with relationship property entitlements and
rights to claim provision from an estate, in many instances, those
entitlements
or awards might not grant partners with the ability to remain in the
deceased’s home.
- 9.21 Lastly, as
noted in the PRA review, the court’s power to make furniture orders under
the PRA is restricted in terms of
the types of property
included.644F[645] Broadening the
property available beyond “furniture, household appliances, and household
effects” could better support
the best interests of those surviving the
deceased, including children.
RESULTS OF CONSULTATION
- 9.22 In
the Issues Paper, we proposed that the new Act should express the court’s
powers to make occupation, tenancy and furniture
orders in favour of a surviving
partner or a principal caregiver of any minor or dependent child of the
deceased. We suggested that,
while these orders may delay distribution of the
estate and add costs to administration, the benefits of having such orders
outweighed
these disadvantages.
- 9.23 We received
submissions on the Issues Paper regarding use and occupation orders.
Additionally, we received several submissions
on the consultation website that
commented on the importance of allowing a surviving partner or minor children to
stay in the family
home. All submitters agreed that we had identified the major
issues with the current law.
- 9.24 Submitters
were generally supportive of our proposals in the Issues Paper. We heard from
Perpetual Guardian that use and occupation
orders are more frequently seen in
disputes around separation and are not commonly used in the context of estates.
However, we heard
from submitters that there is a place for them in this context
and that their benefits outweigh the potential detriment caused.
- 9.25 Te
Kāhui Ture o Aotearoa | New Zealand Law Society (NZLS) highlighted as a
preliminary consideration that our proposals
dealing with use and occupation
orders on one partner’s death must be integrated with the correlating
provisions under the
PRA on separation, either in the PRA’s current form
or under an amended version of the legislation if our recommendations are
implemented.
Occupation orders
- 9.26 Submitters
to the Issues Paper were generally supportive of our proposal that a court
should have the ability to grant an occupation
order to a surviving partner or a
principal caregiver of any minor or dependent child of the deceased.
- 9.27 A number of
submitters, including NZLS and Professor Bill Atkin, emphasised that a surviving
partner should not be left worse
off on death than on separation and that it is
important to ensure surviving partners do not suffer hardship when a
relationship
ends in this way. Accordingly, both NZLS and Atkin submitted that
orders that would be available to a partner under the PRA during
their lifetime
should also be available on their partner’s death.
- 9.28 Several
submitters also emphasised that a surviving partner or family members living
with the deceased should not be forced to
sell the family home and indeed that
having to do so adds dislocation to the pain of having lost someone. Submitters
highlighted
the positive benefits of occupation orders in these respects,
acknowledging that retaining a roof over a surviving partner’s
head for a
time could be more valuable than receiving chattels or jewellery and that such
orders are a solution to ensure a surviving
partner is able to retain their
standard of living and continue in a similar financial position after their
partner’s death.
- 9.29 Opinions
differed significantly on the length of time to which the recipient of an order
should be entitled to have occupation
of a property. Most submitters suggested
such orders should be of a temporary nature and should not create long-standing
rights because
an order is to assist a recipient to transition to an independent
living situation. Atkin agreed that such orders are likely to be
transitional
(and it will be rare where they are for a longer period of time) but said they
should not necessarily be limited to
being temporary. Some website submitters,
however, suggested that a surviving partner caring for children under the age of
18 should
have the right to remain in the property until any dependent children
reach the age of 18. Other submitters to the website proposed
that a surviving
partner should only be able to benefit from an occupation order until they have
repartnered. Several submitters
suggested that a surviving partner should be
entitled to a life interest in the property and be able to remain in the
property until
they choose to move out. Conversely, certain submitters proposed
specific periods of time, ranging from six months to 10 years.
- 9.30 We received
several submissions on what property should be subject to an order. One
submitter said that a partner should not
have a claim on a family home if it was
not purchased together. All other submitters supported our proposal that if an
occupation
order is granted, it should be in respect of any property of the
estate, as well as property the deceased owned as joint tenant and
property held
on trust where a child is a beneficiary of the trust.
- 9.31 Submitters,
including Perpetual Guardian, NZLS and Succeed Legal said that use and
occupation orders could delay the administration
of an estate, increase
administration costs and impact other beneficiaries in an estate. Atkin observed
that the granting of orders
will usually turn on a balancing of factors. We also
heard from submitters that balancing these factors will be particularly
difficult
in blended family situations, for example, where the deceased has made
a gift of property to one or more children from a previous
relationship, but the
court makes an occupation order in favour of the surviving partner of the
deceased who has caregiving responsibilities
for dependent children.
- 9.32 A majority
of submitters, however, believed that the benefits of an occupation order in
favour of the deceased’s children
would outweigh the detriment to an
estate in terms of costs and the potential delay in distribution. Public Trust
submitted that
such delay may be necessary to ensure the welfare of the
surviving partner or dependent children of the deceased.
Tenancy orders
- 9.33 In
the Issues Paper, we proposed that a court should also have the ability to grant
a tenancy order to a surviving partner or
a principal caregiver of any minor or
dependent child of the deceased, although we considered that such orders would
be rare.
- 9.34 We received
limited feedback in relation to tenancy orders. Those who did comment on this
matter confirmed that tenancy orders
are rare, and Perpetual Guardian reiterated
that such orders are generally intended to be only temporary.
MinterEllisonRuddWatts
did note that the requirement in the UNCROC to take a
child-centred approach applies to rented homes as well. They also said that
tenancy orders would be better located in the Residential Tenancies Act
1986.
Presumption in favour of minor or dependent children of the
deceased
- 9.35 In
the Issues Paper, and as recommended in the PRA review, we proposed that, where
the deceased left any minor or dependent child,
the new Act should contain a
presumption in favour of granting a temporary occupation or tenancy order to the
principal caregiver
of the child for the benefit of the child. We suggested that
a court may decline to make an order if it is satisfied that an application
is
not in the child’s best interests or would otherwise result in serious
injustice, which the court would determine, having
regard to a number of
relevant factors.
- 9.36 We received
mixed views on this proposal in consultation. Some submitters, including Public
Trust and MinterEllisonRuddWatts,
supported our suggestions, agreeing that the
best interests of any child should be a primary consideration and that it was
appropriate
the court should be able to protect the interests of minor and
dependent children in this way. Chapman Tripp suggested that, when
considering
an occupation order, the court should take into account whether the child was
living in the accommodation prior to the
death of the deceased and whether the
living situation would enhance the wellbeing of the child.
- 9.37 Other
submitters were more hesitant. The Family Law Committee of Auckland District Law
Society submitted that children’s
interests should not be elevated higher
than they are now and cautioned that our proposals would lead to children being
used in support
of a surviving partner’s claim to property, which would
run counter to treating children’s best interests as a primary
consideration. NZLS and Succeed Legal submitted that it may not be appropriate
to prioritise the best interests of the child in an
estate administration
context. Succeed Legal suggested this was only a primary area of concern where
both parents have died, while
NZLS submitted that, while it is important the
court has adequate powers to ensure dependent children do not suffer hardship on
the
death of a parent, a presumption in their favour would unnecessarily and
inappropriately fetter the discretion of the court.
- 9.38 As a
separate consideration, Public Trust submitted that, if we are to recommend
orders for the benefit of dependent children,
it is important to establish a
clear definition of “dependent”.
Furniture orders
- 9.39 In
the Issues Paper, we proposed that a court should have the power to grant
furniture orders to a surviving partner or principal
caregiver of any minor or
dependent child of the deceased. We suggested that, when doing so, the court
should consider the best interests
of the child as a primary consideration. We
also proposed that the types of property that may be the subject of a furniture
order
should be extended to other types of property that would come under the
new Act’s definition of family
chattels.645F[646]
- 9.40 Although we
received limited feedback on these suggestions, those submitters who did comment
were supportive of our proposals.
Occupation rent
- 9.41 In
the Issues Paper and as recommended in the PRA review, we proposed that the
court should have power to order that the recipient
of an occupation order pay
occupation rent to the estate (or trust as the case may be). We suggested,
however, that the new Act should
not contain guidance on how such rent should be
calculated, on the basis that the decision will depend on many factors and the
court
should have broad discretion to take all relevant matters into
account.
- 9.42 We received
several submissions on this issue, all of which affirmed that the court should
have the power to order that the recipient
of an order pay rent to the estate or
trust. Atkin was cautious, however, that occupation rent could be potentially
chilling to claims
for an occupation order and submitted that occupation rent
should seldom be imposed if the recipient of an occupation order was fulfilling
childcare responsibilities.
- 9.43 Opinions
differed on whether the new Act should contain guidance factors on the
calculation of rent. Public Trust submitted that
the court should have broad
discretion to take into account relevant factors and that there should be no
prescribed formula on the
calculation of rent. Morris Legal, conversely,
submitted that the new Act should include guidance factors, including the market
rent
of the property, whether the recipient was paying any rent towards the
property during the deceased’s lifetime, and the financial
circumstances
of the recipient, the deceased and the beneficiaries of the estate or
trust.
Relationship between use and occupation orders and family
provision and relationship property claims
- 9.44 In
the Issues Paper, we noted that use and occupation orders are conceptually
distinct from family provision claims. Whereas
a family provision award should
reflect the extent of the particular claimant’s rights to family
provision, a use or occupation
order should be targeted more towards the
applicant’s immediate accommodation needs. It should be possible for an
order to
exceed the deceased’s duties to make provision for the applicant,
including being available to an adult dependent child who
is not eligible for a
family provision award.
- 9.45 For these
reasons, we said that these orders should be distinct, and a court should not be
able to satisfy a family provision
claim by awarding use or occupation rights to
the applicant. To the extent a use or occupation order goes beyond the
deceased’s
duties to make provision for the applicant, we suggested the
court might require the applicant to pay occupation rent, which in some
cases
could be offset against a family provision award.
- 9.46 Some
submitters suggested the provisions relating to use and occupation orders should
be located alongside those concerning family
provision or relationship property
claims. Succeed Legal said that dependent children should be sufficiently
provided for under FPA
claims as opposed to use and occupation orders, as
provision under an FPA claim ensures that their guardian can provide for the
future
accommodation and other needs. Several submitters, however, commented
that a surviving partner should not be required to sell the
property they have
lived in to finance family provision claims, particularly those of adult
children.
CONCLUSIONS
RECOMMENDATIONS
R63
R64
R65
R66
R67
The new Act should provide the court with powers to make:
- occupation
orders;
- tenancy
orders; and
- furniture
orders
in favour of a surviving partner, a principal caregiver of
any minor child of the deceased or a dependent child of the deceased.
For the purposes of granting occupation, tenancy and furniture orders, a
child of the deceased should include:
- an
accepted child, being a child for whom the deceased had assumed, in an enduring
way, the responsibilities of a parent; and
- a
whāngai.
The court should have power to grant an occupation order over any property of
the estate, as well as:
- property
the deceased owned as a joint tenant that would accrue to the remaining joint
tenant(s) by survivorship; and
- property
held on trust where the deceased or any minor or dependent child of the deceased
are beneficiaries of the trust (including
as a discretionary
beneficiary).
The court should consider the best interests of any minor or dependent
children as a primary consideration. Where the deceased left
any minor or
dependent child, the new Act should contain a presumption in favour of granting
a temporary occupation or tenancy order
to the principal caregiver of the child
for the benefit of the child. A court may decline to make an order if it is
satisfied that
an order is not in the child’s best interests or would
otherwise result in serious injustice.
The new Act should expressly refer to the court’s powers to award
occupation rent when appropriate in the circumstances as a
condition of any
occupation order.
The property available for a furniture order should extend to other types of
property that would come under the new Act’s definition
of family
chattels.
Occupation orders
- 9.47 We
recommend that a court should have the ability to grant an occupation order to a
surviving partner or a principal caregiver
of any minor or dependent child of
the deceased.
- 9.48 An
occupation order allows a surviving partner the use of a home for a period,
which gives them stability as they transition
to a life in which they are not
dependent on the deceased’s estate for accommodation support. Although we
recognise that use
and occupation orders have the potential to delay estate
administration and distribution and to increase costs of administration,
we
believe the court should nevertheless be able to make these orders in
appropriate circumstances. The fact that orders will in
most cases be
transitional and temporary and may include a condition to pay occupation rent
should lessen any impact on affected
beneficiaries.
- 9.49 We heard
from several submitters that surviving partners will often have accommodation
needs after their partner’s death.
For many relationships, particularly
those that occur between partners later in their lives, a surviving partner may
not be entitled
to claim ownership of the family home. That may be because the
deceased did not gift the home to them in the will or because the
surviving
partner’s relationship property interest does not enable them to receive
the entire home. It can be difficult for
surviving partners, particularly those
with limited financial means, to rehome themselves, while those who are unable
to do so may
be reliant on government assistance for their accommodation
needs.
- 9.50 Where the
deceased has left any minor or dependent children, the court should consider
their best interests as a primary consideration.
This is in line with our
recommendations in the PRA review and ensures consistency with this requirement
in the UNCROC. We also consider
it is consistent with the tikanga relating to
whanaungatanga, manaakitanga and aroha that requires the needs of tamariki are
met.
For adult dependent children, their eligibility for an occupation order is
justified on the basis of their immediate accommodation
needs. If a child is
dependent this will be the case no matter their age. The inclusion of adult
dependent children also aligns with
the availability of occupation orders when
partners separate, which we affirmed in the PRA
review.646F[647]
- 9.51 We
recommend restricting the category of eligible applicants to a surviving partner
from a qualifying relationship, a principal
caregiver of any minor child of the
deceased or a dependent child of the deceased. A child of the deceased should
include “accepted
children” and whāngai, which we discuss
further in Chapter 5. An accepted child is any child for whom the deceased
assumed,
in an enduring way, the responsibilities of a parent. A whāngai
relationship between the deceased and the child is something
that will need to
be established pursuant to the tikanga of the relevant whānau. There may be
other individuals, beyond those
we recommend should be eligible to seek an
order, who depended on the deceased for use or occupation of property and may
therefore
be in need of accommodation support upon the deceased’s death,
such as a surviving partner who, despite cohabiting with the
deceased, was not
in a qualifying relationship or an adult child who had not left home. However,
we do not think such individuals
should be entitled to use and occupation rights
in the property following the deceased’s death. It is difficult to see
why,
in the absence of formal occupation and use rights (such as a licence or a
lease), the deceased should owe legal obligations to such
individuals,
particularly as the deceased would have no legal obligation to provide for these
individuals while alive. We also consider
that, in most cases, personal
representatives will be lenient towards these individuals as they transition to
alternative accommodation.
Such leniency may also be consistent with tikanga and
reflect whānau wishes in particular circumstances.
- 9.52 We expect
that a recipient of an order would normally have been resident in the property
prior to the deceased’s death.
We do not, however, recommend making such
co-residency with the deceased a condition on which the court should grant an
order. Instead,
we favour the court having broad powers to address the
accommodation needs of the deceased’s partner and children following
death. We also note that the court’s powers under the PRA are not
restricted by co-residency requirements.
- 9.53 We consider
the best approach for determining the duration of an order is to allow the court
to have discretion, as it currently
does, to make an order for such period as it
sees fit, having regard to the circumstances of the case. There will frequently
be a
number of factors to balance, which we consider the court is best placed to
weigh, including the tikanga of the whānau where
relevant.
- 9.54 The court
should have power to grant an order in respect of any property of the estate as
well as:
(a) any property the deceased owned as joint tenant that would accrue to the
remaining joint tenant(s) by survivorship; and
(b) any property held on trust where the deceased or any minor or dependent
child of the deceased are beneficiaries of the trust,
including as a
discretionary
beneficiary.647F[648]
- 9.55 We consider
that, if eligible recipients have immediate accommodation needs, these will
exist irrespective of the nature of ownership
in the property. We also consider
it is appropriate to allow occupation of trust property on a temporary basis as
long as the deceased’s
children have a beneficial interest in the
property. Apart from the presumption in favour of granting an order in favour of
any minor
or dependent child of the deceased, the court should otherwise retain
a broad discretion to make or withhold an order, having regard
to the
circumstances of the trust, including the interests of other
beneficiaries.
Tenancy orders
- 9.56 We
recommend that the new Act should provide the court with powers to grant a
tenancy order to a surviving partner or a principal
caregiver of any minor or
dependent child of the deceased. When making furniture orders, the court should
consider the best interests
of the child as a primary consideration. Although
tenancy orders are rare, we did not receive any call for them to be
removed.
- 9.57 We consider
that it is appropriate to retain tenancy orders alongside occupation and
furniture orders. The objective of a tenancy
order is the same as that of an
occupation order, and both occupation and tenancy orders work in conjunction
with furniture orders.
This is also consistent with our recommendations in the
PRA review.
Presumption in favour of minor or dependent children of the
deceased
- 9.58 We
recommend that, where the deceased left any minor or dependent child, there
should be a presumption in favour of granting
a temporary occupation or tenancy
order to the principal caregiver of the child for the benefit of the child, with
the proviso that
a court should be able to decline to make an order if it is
satisfied that an application is not in the child’s best interests
or
would otherwise result in serious injustice. This is consistent with our
recommendations in the PRA review.
- 9.59 In
determining whether the order would be in the child’s best interests, the
court should have regard to:
(a) the need to provide a home for the child;
(b) the potentially disruptive effects on the child of a move to other
accommodation; and
(c) the child’s views and preferences if they can be reasonably
ascertained.
- 9.60 In
considering whether the order would cause serious injustice, the court should
consider the interests of beneficiaries and
claimants against the estate and how
they would be affected by the order. In making this assessment, the
court’s power to award
occupation rent will be relevant.
- 9.61 We consider
that this approach is consistent with Aotearoa New Zealand’s obligations
to take a child-centred approach under
the UNCROC as well as a parent’s
duty to provide for their children. It reflects the tikanga relating to
whanaungatanga, manaakitanga
and aroha towards tamariki. It also recognises
there may be cases where it would be inappropriate to award an occupation order
and
allows the court to decline to do so. Although some submitters felt the
presumption would inappropriately fetter the discretion of
the court, we are
satisfied that the court’s powers to depart from the presumption give the
court sufficient flexibility.
- 9.62 Whether a
child is “dependent” is a question of fact. We do not consider it
necessary to define this term in the
new Act. The term is already well
established in case law, which suggests that adult children may be dependent on
their parent for
support if they are physically or intellectually disabled, but
adult children who have not progressed to financial independence due
to lack of
desire or motivation are unlikely to be
dependent.648F[649] This is a
different inquiry to the definition of disabled children eligible for family
provision discussed in Chapter 5. As discussed
further below, the family
provision and use and occupation order jurisdiction are conceptually different
and intended to achieve
different objectives. We also consider that the factors
set out above, which received support from submitters, will adequately limit
orders to appropriate circumstances.
Furniture orders
- 9.63 A
court should have the power to make furniture orders in favour of a surviving
partner or a principal caregiver of any minor
or dependent child of the
deceased, either independently of or ancillary to any occupation or tenancy
order. When making furniture
orders, the court should consider the best
interests of the child as a primary consideration.
- 9.64 The
property available for a furniture order should extend to other types of
property that would come under the new Act’s
definition of family
chattels. This will ensure consistency with the recommendations made in the PRA
review.
Occupation rent
- 9.65 We
consider that, when the court makes an occupation order, it should have
discretion to order the recipient of the order to
pay occupation rent to the
estate or trust.
- 9.66 Although we
acknowledge the possibility that occupation rent could be chilling to
applications for an occupation order, we consider
that the benefits of having
rent payable as a condition of any order outweigh this risk. Occupation rent
compensates those beneficiaries
or claimants who have had their entitlements
under the will or intestacy deferred and is an effective means of achieving
balance
between the different interests at play.
- 9.67 We
recommend that the new Act should expressly refer to the court’s ability
to award occupation rent when appropriate in
the circumstances as a condition of
any order, since, as identified in the PRA review, there is nothing in the
wording of the provisions
currently alerting a reader to this
possibility.649F[650]
- 9.68 As
recommended in the PRA review, we do not recommend including guidance in the new
Act for how a court should calculate occupation
rent. We think the decision will
depend on many factors, and the court should continue to have a broad discretion
to take all relevant
matters into account. We would expect that the factors
outlined by Morris Legal in their submission (the market rent of the property,
whether the recipient was paying any rent towards the property during the
deceased’s lifetime and the financial circumstances
of the recipient, the
deceased and the beneficiaries of the estate or trust) are factors the courts
will take into account without
needing to be specified.
CHAPTER 10
Contracting out and settlement agreements
IN
THIS CHAPTER, WE CONSIDER:
- the law that
governs whether someone, during their lifetime, can make an agreement with
another that determines rights in respect
of their estate when they die instead
of having those rights determined by the relevant statutes (contracting out
agreements); and
- the law that
governs whether people can make agreements that settle any dispute regarding
claims against an estate without the court
having to make orders (settlement
agreements).
CURRENT LAW
Contracting out of the PRA and settling claims
- 10.1 Part
6 of the Property (Relationships) Act 1976 (PRA) enables partners to reach their
own agreement about the division of their
property rather than following the
provisions of the Act. There are different types of agreements. Section 21
allows partners in
a relationship, or contemplating entering a relationship, to
make a contracting out agreement with respect to the status, ownership
and
division of their property. Section 21A provides for partners to enter an
agreement for the purposes of settling any differences
that have arisen between
them concerning property.
- 10.2 Section 21B
allows agreements where one partner dies. This can be where proceedings are
commenced while both partners are alive
but then one partner dies or when one
partner has died and the surviving partner or the deceased’s personal
representative
intends to commence or has commenced proceedings. In either case,
the surviving partner and the personal representative may make
an agreement for
the purpose of settling the claim.
- 10.3 Parties
must observe the procedural safeguards in section 21F for an agreement to have
effect.650F[651] These
are:
(a) the agreement must be in writing;
(b) each party to the agreement must have independent legal advice before
signing the agreement;
(c) the signature of each party to the agreement must be witnessed by a lawyer;
and
(d) the lawyer who witnesses the signature must certify that, before the party
signed, the lawyer explained to that party the effect
and implications of the
agreement.
- 10.4 Section 21G
provides that section 21F does not limit any other law that makes a contract
void, voidable or unenforceable.
- 10.5 Under
section 21J, a court can set aside an agreement if satisfied that giving effect
to it would cause serious injustice, having
regard to:
(a) the provisions of the agreement;
(b) the length of time since the agreement was made;
(c) whether the agreement was unfair or unreasonable in the light of all the
circumstances at the time it was made;
(d) whether the agreement has become unfair or unreasonable in the light of any
changes in circumstances since it was made (whether
or not those changes were
foreseen by the parties);
(e) the fact that the parties wished to achieve certainty as to the status,
ownership, and division of property by entering into
the agreement; and
(f) any other matters that the court considers relevant.
- 10.6 The test to
set aside an agreement is a high threshold. In 2001, Parliament changed the test
from “unjust” to “serious
injustice”. In addition, it
inserted section 21J(4)(e), which requires the court to have regard to the fact
that the parties
wished to achieve certainty in their affairs. The amendments
responded to the concern that the courts were setting aside contracting
out
agreements too readily.651F[652]
Te Kōti Pīra | Court of Appeal has noted that serious injustice is
most likely to be demonstrated by an unsatisfactory
process resulting in an
inequality rather than mere inequality of outcome
itself.652F[653]
- 10.7 In
addition, in deciding whether giving effect to an agreement made under section
21B would cause serious injustice, section
21J(5) provides that the court must
also have regard to whether the estate of the deceased spouse or partner has
been wholly or partly
distributed.
Contracting out of the FPA and settling claims
- 10.8 There
is nothing in the Family Protection Act 1955 (FPA) that expressly prevents
parties entering agreements during their lifetime
regarding their rights under
the FPA. However, the courts have held that the FPA is paramount as a matter of
state policy and potential
claimants cannot surrender their rights through
agreements.653F[654]
- 10.9 The courts
have held that agreements entered to settle FPA claims after the deceased has
died do not prevent a person from pursuing
a
claim.654F[655] Nevertheless, we
understand parties often enter “deeds of family arrangement” to
settle FPA claims.655F[656]
Contracting out of the TPA and settling claims
- 10.10 A
claim under the Law Reform (Testamentary Promises) Act 1949 (TPA) is, by its
nature, quasi-contractual. If the parties come
to an agreement as to how a TPA
claim would be determined, that would alter the promise upon which the claim is
founded. Consequently,
it would appear that parties can enter contracting out
and settlement agreements to determine a claimant’s TPA claims both
during
the deceased’s lifetime and after their death.
Contracting out of the intestacy regime
- 10.11 There
are no provisions in the Administration Act 1969 dealing with or prohibiting
contracting out of the intestacy regime.
This is understandable because the
deceased could simply have made a will rather than contracting with another
regarding their entitlements.
There is some case law that has found that
separating partners can contract out of intestacy
entitlements.656F[657]
- 10.12 Under
section 81 of the Administration Act, beneficiaries under the intestacy regime
can disclaim their entitlements. However,
a disclaimer has no effect if any
valuable consideration is given for
it.657F[658]
Mutual wills
- 10.13 A
mutual wills arrangement is where two people make wills that dispose of certain
property in a manner they have agreed upon
accompanied by a mutual understanding
that neither party will change or revoke the will or dispose of the
property.658F[659]
- 10.14 For mutual
wills made after 1 November 2007, section 30 of the Wills Act 2007 applies. It
provides that, where two people have
made mutual wills and the first of them to
die (person A) keeps the promise but the second (person B) does not, a person
who would
have benefited from person B’s will had person B kept their
promise may claim from person B’s estate.
- 10.15 For wills
made before 1 November 2007, the common law doctrine of mutual wills continues
to apply. If the surviving person does
not keep their promise, when they die,
their personal representative must hold the property on trust for the
beneficiaries of the
mutual wills
agreement.659F[660] This doctrine,
rather than the Wills Act, also applies where the survivor acts inconsistently
with the mutual wills agreement during
their lifetime.
NGā TIKANGA
- 10.16 In
this review, we recognise the importance of weaving tikanga into the law, and we
sought feedback on where state law ought
to recognise and respond to tikanga and
any kawa necessary to enliven that tikanga. We have not received much feedback
from Māori
on tikanga relevant to contracting out and settlement
agreements. It is possible, however, to make some general comments as to how
tikanga might apply.
- 10.17 First,
allowing people the freedom to enter agreements as to how an estate should be
distributed recognises the mana of the
parties to the agreement. It provides a
means for Māori to arrange their property affairs in a manner of their own
choosing.
- 10.18 Second,
throughout this Report and, in particular, Chapter 13 on resolving disputes out
of court, we stress the importance of
tikanga processes through which Māori
may settle disputes relating to succession. Māori dispute resolution is
primarily
concerned with maintaining a state of wellbeing and
balance.660F[661] The application
of tikanga to social relationships leads to conflict management processes that
differ from prevalent Western ways
of viewing and solving
conflict.661F[662] Tikanga
relating to mana, tapu and, especially, utu dictate the process and content of
resolutions. These decision-making processes
are not easily reduced into
detailed rules.662F[663] As we
conclude in Chapter 13, allowing Māori to resolve disputes through tikanga
and tikanga processes, rather than through
state law and institutions, also
facilitates the exercise of tino rangatiratanga guaranteed in te
Tiriti.
RECOMMENDATIONS IN THE PRA REVIEW
- 10.19 In
the PRA review, we made recommendations in relation to contracting out and
settlement agreements for the division of relationship
property when partners
separate. We concluded that the legislation should continue to enable partners
to make their own agreement
about how to divide their property during or in
anticipation of entering into a relationship and in order to settle any
differences
that arise between
them.663F[664]
- 10.20 We
recommended that the existing procedural safeguards in section 21F of the PRA
should be retained. We added that the legislation
should permit lawyers to use
audio-visual technology to witness a partner signing a contracting out or
settlement agreement.664F[665] If
an agreement fails to conform to the procedural safeguards, we recommended that
the court’s power to give effect to the
agreement should continue on the
same basis but with the additional requirement that the court should have regard
to the same matters
that are relevant when deciding whether to set aside an
agreement for serious
injustice.665F[666]
- 10.21 We
recommended that the court should continue to have power to set aside agreements
that would cause serious injustice. We recommended,
however, that the power
should be enlarged to enable a court to vary the agreement instead of setting it
aside.666F[667] We also
recommended that the court should have regard to the best interests of any minor
or dependent children of the relationship
when exercising its
powers.667F[668]
ISSUES
Parties should be entitled to make comprehensive agreements
regarding property on death
- 10.22 In
our view, the law should respect the wishes of partners and people contemplating
entering a relationship to have their rights
and claims against each
other’s estates determined by agreement rather than the relevant statutes
provided the parties have
entered the agreement informed of their rights. The
current law, which prevents parties from contracting out of the FPA, undermines
parties’ freedom to arrange their affairs in the manner they wish,
promoting a certain and final outcome.
State law governing agreements should recognise and respond
to tikanga Māori
- 10.23 As
noted above, contracting out and settlement agreements are likely to involve
aspects of tikanga concerning the mana of the
parties. They are connected to how
parties might resolve disputes through tikanga processes. Responsible
kāwanatanga requires
that state law ought to recognise and respond to these
matters.
The current law can lead to inconsistent
outcomes
- 10.24 Several
anomalies can potentially arise under the current law. First, a situation could
arise where an FPA claim undermines
a contracting out agreement under the PRA.
For example, partners may make an agreement under section 21 of the PRA that
certain property
is to be separate property should one of the partners die.
However, the surviving partner could, at least in theory, claim against
the
deceased’s separate property under the FPA.
- 10.25 Second,
the courts have held that they cannot interfere with contracts to make
testamentary provision when determining FPA
claims.668F[669] A person could
enforce a contract through which the deceased provided them certain benefits
under their will. However, if a contract
provided that a person agrees not to
make an FPA claim against the estate, the court may not enforce it.
There are delays and costs to administration if matters
cannot be settled out of court
- 10.26 It
is unsatisfactory if claims cannot be settled without going to court. The
parties will suffer from extra costs, delays and
the adversarial nature of court
proceedings. Scarce judicial resources may be unnecessarily spent.
It is unclear how claims against estates relate to mutual
wills
- 10.27 It
is unclear what effect a mutual wills arrangement has when a surviving partner
elects option A under Part 8 of the PRA. It
could be argued a mutual wills
arrangement that does not meet the contracting out requirements under the PRA is
void.669F[670] A surviving partner
would therefore not be prevented from electing option A to divide relationship
property despite the mutual wills.
However, it is unclear whether the property
the surviving partner receives from a relationship property division having
chosen option
A would be held on constructive trust or claimable under section
30 of the Wills Act.670F[671]
- 10.28 There is
also a wider question about the requirements for finding a mutual wills
arrangement. There have been cases where partners
in a subsequent relationship
have entered wills that made provision for the surviving partner to inherit the
estate on the understanding
they would then provide for the deceased
partner’s children in their
will.671F[672] In these cases,
after a partner died, the surviving partner changed their will to omit the
deceased partner’s children. The
court held that a mutual wills
arrangement was not present because there was no evidence that the parties had
committed not to revoke
their wills. A question arises as to whether the
evidential threshold at which the courts should find a mutual wills relationship
arrangement exists should be lowered.
Contracting out and settlement agreements may leave
insufficient property to meet claims
- 10.29 It
is possible that partners’ contracting out and settlement agreements will
provide a surviving partner with more property
than they would otherwise be
entitled to receive by claiming under the new Act while leaving insufficient
property in the deceased’s
estate to meet claims. We consider this issue
further when discussing awards, priorities and anti-avoidance in Chapter
8.
RESULTS OF CONSULTATION
- 10.30 Most
submitters agreed with our identification of the issues in the Issues Paper.
Several submitters who shared their views
through the consultation website said
there should be greater rights than the law currently provides for parties to
enter agreements
that comprehensively determine claims against estates. Most
submitters, including Public Trust, Te Kāhui Ture o Aotearoa | New
Zealand
Law Society (NZLS), the Family Law Committee of Auckland District Law Society
(ADLS) and several law firms and lawyers, expressly
agreed with our proposal
that partners and people contemplating entering a relationship should be able to
contract out of the new
Act’s provisions regarding relationship property
entitlements and family provision claims. We qualified that proposal by adding
that parties must follow procedural safeguards to ensure they appreciate their
rights, namely, obtaining independent advice and having
the lawyer witness the
agreement and certify they explained the effect and implications of the
agreement. We said also there should
be no ability to contract out of family
provision claims that might be brought by minor or dependent disabled children
of the deceased.
Submitters who addressed these points mainly agreed with the
proposals.
- 10.31 Some
submitters’ views differed on the extent to which contracting out of the
new Act should be permitted. McWilliam Rennie
submitted there should be no
ability to contract out of any family provision claim. They explained that the
future a person may have
expected when entering the contract may not eventuate,
for example, because of illness or injury. Chris Kelly, in contrast, favoured
the ability to contract out. He submitted that the procedural safeguards
applying to contracting out agreements under the PRA should
not be applied to
contracting out agreements under the new Act because they impose financial
barriers.
- 10.32 We
proposed in the Issues Paper that it should not be possible to contract out of
family provision claims of minor children
and dependent disabled children. All
submitters who addressed this point agreed, including NZLS and ADLS.
- 10.33 We
proposed in the Issues Paper that a court should have power to give effect to an
agreement that does not comply with the
Act’s procedural safeguards.
Likewise, we proposed the court should have power to set aside or vary an
agreement that would
cause serious injustice. Again, submitters agreed with
these proposals. NZLS disagreed, however, with the proposal that the bests
interests of children should be a matter on which a court could set an agreement
aside. NZLS reasoned that relationship property
agreements concern matters
between adult parties.
- 10.34 Several
submitters supported our proposal that an agreement between former partners on
their separation that purports to be
a full and final settlement of relationship
property matters should be presumed to be full and final settlement of all the
surviving
partner’s entitlements and claims under the new Act.
- 10.35 We
proposed that mutual wills agreements should be subject to the same procedural
safeguards as contracting out agreements regarding
claims against the
other’s estate. We explained this approach is consistent with the wider
contracting out regime and could
avoid contentious litigation about whether
partners did in fact enter a mutual wills arrangement. Several submitters
addressed this
issue, including Public Trust, NZLS and ADLS. They all supported
the proposal.
- 10.36 We
presented two options regarding settlement agreements. The first option was that
the new Act should allow parties to settle
claims without prescribing any
procedural safeguards as to how settlement agreements are made. The second
option was to require parties
to follow the same procedure applying to
contracting out agreements. Most submitters favoured the first option, citing
the burden
and expense of each party obtaining independent legal advice. ADLS,
on the other hand, favoured the second option. TGT Legal submitted
that, where
there are beneficiaries that are minors, unborn or unascertained or otherwise
lack capacity, the agreement should be
submitted to the court for approval on
behalf of those parties.
CONCLUSIONS
RECOMMENDATIONS
R68
R69
Contracting out agreements
Partners and people contemplating entering a
relationship, who are informed of their rights, should be able to enter
contracting out
agreements that deal with relationship property entitlements and
family provision claims under the new Act (contracting out agreements).
A contracting out agreement under the new Act should be void unless it
complies with the following procedural safeguards:
- The
agreement must be in writing.
- Each
party to the agreement must have independent legal advice before signing the
agreement.
- The
signature of each party to the agreement must be witnessed by a lawyer.
- The
lawyer who witnesses the signature must certify that, before the party signed,
the lawyer explained to that party the effect and
implications of the
agreement.
R70
R71
R72
R73
R74
R75
R76
If a contracting out agreement does not comply with the formalities in R69, a
court should have power to give effect to the agreement
if non-compliance has
not caused material prejudice to the parties.
Contracting out agreements should be subject to any other law that makes a
contract void, voidable or unenforceable.
A court should be able to set aside or vary a contracting out agreement if
satisfied that giving effect to it would cause serious
injustice. In deciding
whether the agreement would cause serious injustice, the court should have
regard to the matters currently
set out in section 21J of the PRA, the best
interests of any minor or dependent children of the deceased and the tikanga of
the relevant
whānau. For the purposes of determining whether to set aside
or vary an agreement, a child of the deceased should include:
- an
accepted child, being a child for whom the deceased had assumed, in an enduring
way, the responsibilities of a parent; and
- a
whāngai.
Contracting out agreements should be subject to the new Act’s
anti-avoidance provisions recommended in R57-R62.
There should be no ability to contract out of family provision claims with
minor children or adult children who are deemed by law
to lack capacity.
An agreement between former partners on their separation that purports to be
a full and final settlement of relationship property
claims should be presumed
to be a full and final settlement of the surviving partner’s entitlements
and claims under the new
Act unless the agreement provides otherwise.
Mutual wills agreements should be subject to the same procedural safeguards
as contracting out agreements regarding claims against
the other’s
estate.
Partners should be able to contract out of all entitlements and
claims under the new Act
- 10.37 In
previous chapters, we recommend that the new Act should provide for several
claims that may be made against a deceased estate:
(a) A surviving partner should be entitled to the relationship property interest
they would otherwise receive had the relationship
ended while the deceased was
alive.
(b) A surviving partner should be able to claim family provision from the estate
where, taking into account the provision available
under the deceased’s
will or in an intestacy, a surviving partner has insufficient resources to
maintain a reasonable, independent
standard of living, having regard to the
economic consequences of the relationship.
(c) We presented two options for the Government to consider in respect of family
provision awards to children of the deceased:
(i) Option One: All children or grandchildren of the deceased should be able to
claim family provision when the deceased has unjustly
failed to provide for them
if they are in financial need or unjustly failed to recognise them.
(ii) Option Two: Children under 25 or disabled children of any age should be
able to claim family provision when, the child does
not have sufficient
resources to enable them to be maintained.
(d) When a deceased has promised to reward someone in their will who has
provided them substantial work or services, the promisee
should be able to claim
against the estate (testamentary promise claims).
- 10.38 In
addition, we recommend amendments to the intestacy regime in the Administration
Act as to which family members should succeed
to the intestate estate and in
what shares (see Chapter 7).
- 10.39 In
general, we favour an approach that enables adults to contract out of the
entitlements and claims they may have in respect
of someone’s estate. We
believe this approach is consistent with the principles underpinning
contemporary state law in Aotearoa
New Zealand that adult parties generally have
autonomy to arrange their property matters with each other in the way they would
like.
It also addresses the unsatisfactory state of the current law, which
allows people in relationships, or people contemplating entering
relationships,
to contract out of some claims against an estate but not others. Lastly, most
submitters favoured a more comprehensive
ability to contract out than the
current law permits. As noted above, from a tikanga perspective, it recognises
the mana of the parties
entering the contract. It provides a means for
Māori to arrange their property affairs in a manner of their own choosing,
thereby
facilitating tino rangatiratanga.
- 10.40 Accordingly,
we recommend that partners or people contemplating entering a relationship, who
are informed of their rights, should
be able to enter contracting out agreements
that deal with relationship property entitlements and family provision claims
under the
new Act.
- 10.41 Contracting
out agreements under the new Act should be void unless they comply with the same
procedural safeguards that currently
apply to agreements entered under the PRA,
namely:
(a) the agreement must be in writing;
(b) each party to the agreement must have independent legal advice before
signing the agreement;
(c) the signature of each party to the agreement must be witnessed by a lawyer;
and
(d) the lawyer who witnesses the signature must certify that, before the party
signed, the lawyer explained to that party the effect
and implications of the
agreement.
- 10.42 These
safeguards recognise that contracts regarding relationship property or family
provision claims may be made between parties
who do not approach one another as
contracting parties at arm’s length. Rather, they are in relationships of
love, affection
and aroha. The parties may be of unequal bargaining power. The
purpose of the safeguards is to ensure people do not sign away their
rights
without appreciating their entitlements under the new Act and the implications
of the agreement.
- 10.43 If an
agreement does not comply with the safeguards, a court should have powers to
give effect to the agreement if non-compliance
has not caused material prejudice
to the parties.672F[673] A court
should only give effect to the agreement to the extent it would not be caught by
any anti-avoidance provisions that may be
implemented in the new Act.
- 10.44 We
recommend that these agreements should also continue to be subject to any other
law that makes a contract void, voidable
or unenforceable. A court should also
be able to vary or set an agreement aside if satisfied that giving effect to it
would cause
serious injustice. This will enable the court to address agreements
that have, for example, become unfair or unreasonable in light
of any changes in
circumstances since they were made. The court should have regard to the matters
currently set out in section 21J
of the PRA, and whether the estate has been
wholly or partly
distributed.673F[674] The factors
should direct the court to have regard to the best interests of any minor or
dependent children of the deceased, similar
to the recommendation in the PRA
review.674F[675] For the purposes
of determining whether to set aside or vary an agreement, a child of the
deceased should include an accepted child
(being a child for whom the deceased
had assumed, in an enduring way, the responsibilities of a parent) and a
whāngai. Where
applicable, the court should also have regard to the tikanga
of the whānau to determine whether the agreement would cause serious
injustice.
- 10.45 We
recommend that contracting out agreements should be subject to the
anti-avoidance provisions we recommend in Chapter 8. A
court should have power
to recover property when, based on the grounds within the recommended
anti-avoidance provisions set out in
Chapter 8, an agreement has the effect of
defeating the entitlements and claims of others in relation to the
estate.675F[676]
No ability to contract out of some family provision
claims
- 10.46 Irrespective
of whether the Government adopts Option One or Option Two in relation to the
family provision claims of children,
we recommend that there should be no
ability to contract out of claims that may be brought by minor children or adult
children who
are deemed by law to lack capacity. This approach differs from our
proposal in the Issues Paper that there should be no ability to
contract out of
the family provision claims of children under 25 and dependent disabled
children. While submitters generally supported
this approach, there may be good
reasons to enable contracting out for children aged 18 or over and dependent
disabled children who
have capacity. For example, a parent may wish to provide
financial support to help a child buy a house or complete education on the
understanding it is an advance of their inheritance and no further provision
would be available to that child when the parent dies.
In our view, any
prohibition on contracting out should apply in respect of claimants who are
particularly vulnerable owing to their
minority or lack of legal
capacity.676F[677]
Procedural safeguards are not needed for agreements with adult
children concerning family provision and testamentary promise claims
- 10.47 We
do not consider the new Act should make express provision in relation to adult
children’s family provision claims,
irrespective of whether the
Government adopts Option One or Option Two. Omitting express provision in the
new Act for adult children
to enter agreements will not preclude the parties
from entering contracting out agreements and will instead enable the parties to
enter arrangements that might not comply with the statutory formalities. As
noted above, a person may provide their adult child with
support during their
life on the understanding it was an advance on their inheritance and no further
provision would be available
for that child when the deceased dies. The court
should not be required to disregard this arrangement as void because it does not
qualify as a contracting out agreement. Rather, in considering an adult
child’s application for family provision, the court
should have regard to
any agreement as part of its general inquiry as to whether the deceased has made
insufficient provision for
the
child.677F[678]
- 10.48 We are
also mindful that an award to an adult child is more discretionary than a
partner’s relationship property entitlements.
It would be difficult to
apply the other provisions that apply to contracting out agreements in the PRA,
such as when the court should
validate a non-complying agreement or set an
agreement aside for serious injustice.
- 10.49 We do not
consider the parties should be required to follow the same procedural safeguards
when making a contract that relates
to a person’s rights to bring a
testamentary promise claim. It is preferable that parties can make agreements
for work or services
that might otherwise give rise to a claim without the
potential barrier of having to go through the full contracting out procedure.
In
any event, parties entering a contracting out or settlement agreement to address
other matters could, in addition, include terms
relating to testamentary promise
claims.
Effect of a relationship property settlement when a partner
dies
- 10.50 Under
the current law, it is unclear whether a relationship property settlement
between partners during their lifetimes precludes
them from later making an FPA
claim and/or precludes them from entitlements under the intestacy regime, when a
partner dies. We recommend
that an agreement between former partners on their
separation that purports to be a full and final settlement of relationship
property
claims should be presumed to be a full and final settlement of the
surviving partner’s entitlements and claims under the new
Act unless the
agreement provides
otherwise.678F[679]
Mutual wills
- 10.51 We
recommend that mutual wills agreements should be subject to the same procedural
safeguards as contracting out agreements
regarding claims against estates. That
is, if the parties agree not to revoke their wills or deal with property
inconsistently with
them, that agreement should be recorded in writing, their
signatures should be witnessed, and the lawyers advising each partner should
certify the agreement. If these requirements were not met, the court could give
effect to the agreement if neither partner suffered
material prejudice.
- 10.52 Similarly,
a court should be able to vary or set aside agreements that would cause serious
injustice. Like other contracting
out agreements, a mutual wills arrangement
that defeats a person’s claims under the new Act should be subject to the
new Act’s
anti-avoidance provisions we recommend in Chapter 8. The
court’s remedial powers to set aside or vary mutual wills arrangements
that would cause serious injustice should not be used as a substitute for the
court’s anti-avoidance powers.
- 10.53 We
recommend that mutual wills should be made as contracting out agreements
because:
(a) it is consistent with the wider regime for contracting out;
(b) it would avoid the contentious litigation often seen in the courts as to
whether the partners did in fact enter a mutual wills
arrangement;
(c) the court would have residual powers to give effect to the agreement or to
vary or set the agreement aside; and
(d) it will help address instances where mutual wills ought or ought not to be
enforced.
Settlement agreements
RECOMMENDATIONS
R77
The new Act and the Administration Act 1969 should clarify that parties may
enter agreements to settle any difference arising between
them in relation to
relationship property entitlements, family provision claims, testamentary
promise claims and intestacy entitlements
under the new Act and the intestacy
regime (settlement agreements). The legislation should impose no procedural
safeguards for parties
to observe when entering settlement agreements.
R78
Settlement agreements should be subject to any other law that makes a
contract void, voidable or unenforceable.
R79
A court should be able to set aside or vary a settlement agreement if
satisfied that giving effect to it would cause serious injustice.
In deciding
whether the agreement would cause serious injustice, the court should have
regard to the matters currently set out in
section 21J of the PRA, the best
interests of any minor or dependent children of the deceased, and the tikanga of
the relevant whānau.
R80
Settlement agreements should be subject to the new Act’s anti-avoidance
provisions recommended in R57-R62.
Parties should be able to settle disputes by agreement
- 10.54 We
recommend that the new Act should contain provisions stating that parties can
enter an agreement to settle any differences
arising between them under the new
Act. These types of agreements are likely to involve multiple parties who have
an interest in
or claim against the estate. They are different in nature to
contracting out agreements. Identical provisions should be included
in the
Administration Act in respect of disputes arising in relation to the intestacy
regimes.
- 10.55 The
provisions in the new Act and Administration Act should not prescribe any
procedural safeguards for those parties to observe
when entering agreements
except where the dispute involves parties who are unascertained, minors or
deemed by law to lack capacity
(see below). This approach would continue the
existing practice of parties entering deeds of family arrangement. It would be a
matter
of judgement for the parties, particularly the personal representatives,
as to how the agreement should be entered. For example,
questions that might
need to be considered include:
(a) who would need to be party to the settlement agreement;
(b) which parties would need to obtain independent legal advice; and
(c) how parties who have chosen against actively participating in the settlement
negotiations should be included in the agreement.
- 10.56 If,
however, the dispute involves parties who are unascertained, minors or persons
deemed by law to lack capacity, we recommend
that the new Act should prescribe a
process consistent with the alternative dispute resolution provisions of the
Trusts Act 2019.679F[680] We
discuss this process further in Chapter 13 on resolving disputes out of court.
To summarise, the court should appoint representatives
for these parties. The
representative should be able to agree to participate in an out-of-court
resolution process and agree to any
settlement reached. The representative
should act in the best interests of the parties they represent. We recommend
that the court
should be required to approve any settlement that involves
unascertained parties, minors or persons who are deemed by law to lack
capacity.
- 10.57 Apart from
the requirements applying in respect of parties who are unascertained, minors or
persons deemed by law to lack capacity,
the main advantage of prescribing no
other requirements is that it should be easier for the parties to conclude
settlements than
if more stringent procedural safeguards applied. Of the two
options presented in the Issues Paper, most submitters favoured the
less-stringent
approach. They reasoned that requiring every party to obtain
independent legal advice before a settlement agreement became binding
would be
too burdensome, adding cost and other barriers to parties settling their
disputes.
- 10.58 A more
flexible approach to concluding settlements, as this recommendation provides
for, is likely to be more consistent with
tikanga processes for resolving
disputes. As we note in Chapter 13, the application of tikanga to social
relationships may lead to
conflict management processes that differ from
prevalent Western ways of viewing and resolving conflict. Māori
decision-making
processes do not sit easily with detailed rules to govern the
process. Suitable resolution methods are decided and acted upon according
to
various factors, including the relationships involved and the tikanga that were
transgressed.680F[681] The dispute
resolution process is thus fluid and might incorporate several methods and
principles in order to reach a
solution.681F[682] We anticipate
that requiring parties to obtain independent legal advice and entering a formal
settlement agreement in which each
parties’ lawyer certifies the agreement
could unnecessarily undermine the tikanga of the resolution process.
- 10.59 We
recognise the disadvantages of this option, including:
(a) the possible uncertainty as to when and how it is permissible for the
parties to enter a settlement agreement; and
(b) the potential that parties enter imprudent agreements they would not have
entered had more stringent safeguards applied.
- 10.60 There are,
however, ways in which inappropriate settlement agreements may be avoided. If a
personal representative or other
parties consider are not sure it would be
appropriate to enter the settlement agreement, they could submit the proposed
settlement
to court for approval. An agreement must also comply with the
requirements otherwise applying to contracts, including any other law
that makes
a contract void, voidable or unenforceable.
- 10.61 Further,
there would be two potential methods to set aside settlement agreements. First,
where an agreement would cause serious
injustice, we recommend that the new Act
should provide the court with power to vary or set aside the agreement. Second,
based on
the anti-avoidance mechanisms we recommend for the new Act in Chapter
8, a settlement agreement that prejudiced the entitlements
or claims of a third
party against the estate who has not properly been included in the settlement
agreement could potentially be
set aside and the property recovered if it had
the effect of defeating claims.
- 10.62 Lastly,
when considering whether a settlement agreement would cause serious injustice,
we recommend that the court should have
regard to the tikanga of the relevant
whānau. This may include setting an agreement aside based solely on tikanga
if needed.
CHAPTER 11
Jurisdiction of the courts
IN THIS CHAPTER,
WE CONSIDER:
- the jurisdiction
of te Kōti Whānau | Family Court and te Kōti Matua | High Court
to hear and determine entitlements
to and claims against an estate; and
- the jurisdiction
of te Kooti Whenua Māori | Māori Land Court to hear and determine
claims relating to taonga.
CURRENT LAW
The PRA
- 11.1 Every
application under the Property (Relationships) Act 1976 (PRA) must be heard by
te Kōti Whānau | Family Court
(the Family
Court).682F[683] The Family Court
can transfer the proceedings to te Kōti Matua | High Court (the High Court)
if the judge is satisfied that
the High Court is the more appropriate venue,
having regard
to:683F[684]
(a) the complexity of the proceedings or of any question in issue in the
proceedings;
(b) any proceedings before the High Court that are between the same parties and
that involve related issues; and
(c) any other matter that the judge considers relevant in the
circumstances.
- 11.2 Parties to
a proceeding or any other person prejudicially affected by a decision have an
automatic right of appeal to the High
Court.684F[685] Appeals against
decisions of the High Court are governed by the Senior Courts Act
2016.685F[686]
The FPA and the TPA
- 11.3 The
Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act
1949 (TPA) have very similar jurisdictional
rules. The High Court and the Family
Court have concurrent jurisdiction with respect to proceedings under both
Acts.686F[687] However, if the
claim relates only to Māori freehold land, it must be made in te Kooti
Whenua Māori | Māori Land Court
(the Māori Land
Court).687F[688] Te Ture Whenua
Maori Act 1993 (TTWMA) provides that te Kooti Pīra Māori o Aotearoa |
Māori Appellate Court (the Māori
Appellate Court) has jurisdiction to
hear and determine appeals from any final order of the Māori Land Court,
whether made under
TTWMA or
otherwise.688F[689]
- 11.4 The Family
Court does not have jurisdiction if proceedings related to the same matter have
already been filed with the High
Court.689F[690] The Family Court
may refer proceedings or any question in the proceedings to the High Court if it
considers it appropriate.690F[691]
The High Court, upon application by any party, must order that the proceedings
be removed to the High Court unless it is satisfied
that the proceedings would
be more appropriately dealt with in the Family
Court.691F[692]
- 11.5 Parties to
a proceeding, or any other person prejudicially affected by the proceedings,
have an automatic right of appeal to
the High
Court.692F[693] Appeals against a
High Court decision are governed by the Senior Courts
Act.693F[694]
The intestacy regime
- 11.6 The
Administration Act 1969 provides that the High Court has jurisdiction to
determine proceedings relating to testamentary matters
and matters relating to
the estate of deceased
persons.694F[695] This general
provision encompasses matters relating to intestate estates, although there are
more specific rules in relation to certain
matters:
(a) The High Court has jurisdiction to grant letters of administration and to
determine who should be appointed as
administrator.695F[696]
(b) The High Court has jurisdiction to determine the validity of a will or its
interpretation.696F[697] The High
Court’s determination may lead to a total or partial intestacy.
(c) The Family Court may give approval for a person under 18 years to make,
change, revoke or revive a
will.697F[698] The Family
Court’s determination may lead to a total or partial intestacy.
(d) The High Court may decide that a surviving de facto partner who was in a
relationship of short duration should succeed on the
deceased partner’s
intestacy.698F[699]
(e) A person can claim against an intestate estate under the PRA, FPA and TPA,
in which case, the jurisdictional rules under those
Acts will
apply.699F[700]
(f) The administrators will hold an intestate estate on trust. Trustees may
therefore apply to the High Court for
directions,700F[701] or
beneficiaries may apply to the High Court to review a trustee’s
decision.701F[702]
- 11.7 The
Māori Land Court has jurisdiction in relation to intestacy over Māori
freehold land.702F[703] Beneficial
interests pass to children in equal shares or, if there are no children, to
siblings in equal shares.703F[704]
In all cases, if those children or siblings entitled to inherit die before the
deceased, their children will inherit their share
equally.704F[705]
ISSUES
Which court is the most appropriate to deal with claims
under the new Act?
- 11.8 In
the Issues Paper, we considered which court was the most appropriate to deal
with claims under the new Act – the Family
Court or the High Court. We
also considered the role of the Māori Land Court, which we discuss
below.
- 11.9 We outlined
factors in favour of the Family Court having first instance jurisdiction, with
the power to transfer proceedings
to the High Court and being subject to rights
of appeal:
(a) The specialist jurisdiction of the Family Court in matters concerning
families, relationships and children’s interests.
The Family Court has
held jurisdiction for PRA matters for 40 years, and FPA and TPA matters for 30
years.
(b) Proceedings in the Family Court are private as hearings are generally not
open to the public.705F[706]
Parties to a dispute may prefer privacy if the dispute centres on questions such
as whether the deceased and the surviving partner
were in a qualifying
relationship.
(c) The Family Court is generally more accessible as Family Court judges are
stationed in towns across Aotearoa New Zealand.
(d) Family Court proceedings must be conducted in such a way as to avoid
unnecessary
formality.706F[707]
(e) Lawyers acting for parties in Family Court proceedings must, so far as
possible, promote
conciliation.707F[708]
(f) The overall costs of Family Court proceedings are generally lower than High
Court
proceedings.708F[709]
- 11.10 Factors in
favour of the High Court having first instance jurisdiction are:
(a) Giving the Family Court exclusive first instance jurisdiction could increase
its already heavy workload and exacerbate
delays.709F[710]
(b) A claim against an estate can be brought alongside other claims for which
the High Court has exclusive jurisdiction, such as
challenging the validity of a
will or the replacement of a personal representative, or a claim based on a
constructive trust.
(c) The claims against estates recommended in this Report may be complex and may
be more appropriate for the High Court’s determination.
For example, a
claim based on a testamentary promise and anti-avoidance provisions could
involve difficult questions of law and fact.
Rights of appeal against interlocutory matters are
uncertain
- 11.11 Some
High Court decisions have interpreted the right to appeal under the PRA as
limited to orders that finally determine
proceedings.710F[711] However, in
L v L, the High Court held there is a right of appeal against
interlocutory decisions under the
PRA.711F[712]
- 11.12 The courts
have also been divided on rights of appeal under the FPA. In Crick v
McIlraith, the High Court held there was no automatic right of appeal
against an interlocutory decision given the terms of section 15(1AA)
of the
FPA.712F[713] On the other hand,
in E v E, the High Court refused to follow Crick v McIlraith,
relying instead on the District Court Act
1947.713F[714]
Jurisdictional limitations of the Family Court
- 11.13 There
are questions regarding the Family Court’s jurisdiction to address certain
property issues that may arise under
the PRA, such as whether a valid trust
exists. Similar issues may arise in FPA and TPA proceedings where claimants try
to impugn
certain transactions. For example, property purportedly settled on a
trust that the court declares invalid would revert to the deceased’s
estate and be available to satisfy a claim.
- 11.14 These
issues have been partly addressed by section 141 of the Trusts Act 2019. That
provision gives the Family Court the power
to make any order or give any
direction available under the Trusts Act in proceedings for which the Family
Court has jurisdiction
under section 11 of the Family Court Act 1980.
- 11.15 In the PRA
review, we recommended that, in relationship property proceedings, the Family
Court should have jurisdiction to hear
and determine any related matter within
the general civil and equitable jurisdiction of te Kōti-ā-Rohe |
District Court
(the District Court) pursuant to sections 74 and 76 of the
District Court Act
2016.714F[715]
The Māori Land Court
- 11.16 In
the Issues Paper, we asked whether the Māori Land Court should have a
broader role in resolving succession disputes
over matters other than whenua
Māori, noting the concerns we had heard about the challenges Māori
face in resolving succession
matters where whenua Māori and other property
are involved. We briefly outlined the history of the Māori Land Court. We
observed that its predecessor court at one time held concurrent jurisdiction
with the High Court (then known as the Supreme Court)
on matters of probate and
administration and at another time held exclusive jurisdiction over these
matters for Māori.715F[716]
We also noted that the appropriate role of the Māori Land Court has been
considered over many years with some suggesting its
jurisdiction should be
broadened.716F[717]
RESULTS OF CONSULTATION
- 11.17 We
received submissions on the jurisdiction of the courts from both submitters to
the consultation website and submitters to
the Issues Paper.
- 11.18 In the
Issues Paper we proposed that the Family Court and the High Court should have
concurrent first instance jurisdiction
to hear claims under the new Act, subject
to both Courts having the power to remove the proceedings to the High Court.
- 11.19 Most
submitters to the Issues Paper agreed that the Family Court and High Court
should have concurrent first instance jurisdiction.
These submitters included
Public Trust, Te Kāhui Ture o Aotearoa | New Zealand Law Society (NZLS),
the Family Law Committee
of Auckland District Law Society (ADLS),
MinterEllisonRuddWatts, Jan McCartney QC and Bill
Patterson.717F[718] NZLS commented
that there should be a provision in the new Act that the Family Court may order,
either on application by a party
or on its own motion, that the proceedings be
removed to the High Court due to the complexity of the matter. However, some
submitters
disagreed with concurrent first instance jurisdiction. Professor Bill
Atkin said that the Family Court should have sole first instance
jurisdiction.
He noted that complex matters can be transferred to the High Court and
implementation of the recommendations in the
Te Korowai Ture
ā-Whānau report will help fix some of the cultural deficiencies in
the Family Court.718F[719] Morris
Legal also submitted that the Family Court should have first instance
jurisdiction with claimants able to seek leave to file
a claim in the High Court
where:
(a) only the High Court has jurisdiction to determine other claims being brought
at the same time by the claimant; or
(b) the claim is particularly complex due to the legal issues and/or the value
of the claim or estate.
- 11.20 Morris
Legal submitted that the Family Court is the most appropriate forum for family
disputes as it is less expensive, more
informal, and private.
- 11.21 In the
Issues Paper, we proposed that the High Court should continue to hold exclusive
jurisdiction for issues concerning the
administration and distribution of an
intestate estate. Most submitters who commented on this agreed with the
proposal. These submitters
included Public Trust, NZLS, MinterEllisonRuddWatts
and Patterson. A few submitters noted the high costs involved with the High
Court
in this regard.
- 11.22 In the
Issues Paper, we also proposed that the new Act should permit appeals as of
right against interlocutory decisions that
can have a significant impact on the
parties’ rights and obligations, including:
(a) occupation, tenancy and furniture orders;
(b) transfers of the proceeding to the Family Court or the High Court; and
(c) orders for the disclosure of information.
- 11.23 We noted
that these proposals were consistent with our recommendations in the PRA
review.719F[720]
- 11.24 Most
submitters who commented on this agreed that the new Act should permit appeals
as of right against interlocutory decisions
that can have a significant impact
on the parties’ rights and obligations. These submitters included Public
Trust, MinterEllisonRuddWatts,
Morris Legal and Patterson. However, Morris Legal
disagreed with the proposal that orders for disclosure of information may be
appealed
as of right because an asset-holding party may use the consequent
increased cost and delay to their advantage. NZLS thought the distinction
between those interlocutory matters that have a significant impact on the
parties’ rights and obligations and other interlocutory
matters was
unnecessary.
- 11.25 Lastly, we
proposed that the Family Court should have jurisdiction to hear and determine
any matter within the general civil
and equitable jurisdiction of the District
Court pursuant to sections 74 and 76 of the District Court Act 2016. We noted
that this
accords with our recommendations regarding Family Court jurisdiction
in the PRA review. The submitters who responded to this point
(Public Trust,
MinterEllisonRuddWatts and Patterson) agreed with our proposals.
- 11.26 In the
Issues Paper, we also asked whether the Māori Land Court should have a
broader role in resolving succession disputes
over matters other than whenua
Māori. The submitters who commented on this question supported a broader
role, including Te Hunga
Rōia Māori o Aotearoa (THRMOA), ADLS,
Professor Jacinta Ruru, Chapman Tripp, Te Kani Williams and
MinterEllisonRuddWatts.
THRMOA said that the jurisdiction of the Māori Land
Court should be extended to matters of probate and administration regarding
estates already before the Court in relation to whenua Māori. THRMOA felt
that the benefits to Māori outweigh the risks
of this approach. It did not
support the alternative approach we proposed, of the Māori Land Court
taking on an active liaison
role with the High Court, as it thought this would
increase the administrative burden on the Māori Land Court.
- 11.27 THRMOA
supported the Māori Land Court having jurisdiction over matters relating to
taonga, noting that this would reduce
some uncertainty and the potentially
increased administration for successors at a difficult time. It noted the
jurisdiction the Māori
Land Court already holds regarding taonga
tūturu under the Protected Objects Act 1975. THRMOA also submitted that the
Māori
Land Court is more accessible to Māori in terms of cost,
approach and expertise. Chapman Tripp supported THRMOA’s submission.
Ruru
supported the Māori Land Court having a broader role in relation to
succession as it is a court Māori deal with in
a regular manner.
MinterEllisonRuddWatts also supported this, subject to concerns about capacity
constraints. ADLS supported the
Māori Land Court having a broader role in
relation to the status and ownership of taonga.
CONCLUSIONS
RECOMMENDATIONS
R81
Te Kōti Whānau | Family Court and te Kōti Matua | High Court
should have concurrent first instance jurisdiction to
hear and determine claims
under the new Act, subject to both Courts having the power to remove the
proceedings to te Kōti Matua
| High Court.
R82
R83
R84
R85
R86
R87
R88
R89
Te Kōti Whānau | Family Court and te Kōti Matua | High Court
should have concurrent jurisdiction to hear and determine
questions concerning
the eligibility of individuals to succeed in an intestacy. Te Kōti Matua |
High Court should continue to
hold jurisdiction for other issues concerning the
administration and distribution of an intestate estate.
The new Act should permit appeals as of right against interlocutory decisions
that can have a significant impact on the parties’
rights and obligations,
namely:
- occupation,
tenancy and furniture orders;
- transfers
of the proceedings to te Kōti Matua | High Court;
- orders
for disclosure of information; and
- applications
regarding the removal of a notice of claim.
Te Kōti Whānau | Family Court should have jurisdiction to hear and
determine any matter within the general civil and equitable
jurisdiction of te
Kōti-ā-Rohe | District Court pursuant to sections 74 and 76 of the
District Court Act 2016. Claims heard
and determined in te Kōti Whānau
| Family Court should not be subject to the financial limit imposed on te
Kōti-ā-Rohe
| District Court.
Te Kooti Whenua Māori | Māori Land Court, te Kōti Whānau
| Family Court and te Kōti Matua | High Court should
have concurrent
jurisdiction to hear and determine succession matters involving taonga.
Te Kōti Whānau | Family Court and te Kōti Matua | High Court
should have the power to transfer proceedings or a question
in proceedings to te
Kooti Whenua Māori | Māori Land Court.
The Government should consider further the appropriate rights of appeal for
matters relating to taonga.
The Government should consider whether the te Kooti Whenua Māori |
Māori Land Court should have jurisdiction to grant applications
for probate
and letters of administration regarding estates for which te Kooti Whenua
Māori | Māori Land Court has jurisdiction
in relation to succession to
Māori freehold land where the applications for probate or letters of
administration are uncontested.
The Government should consider the jurisdiction of te Kooti Whenua Māori
| Māori Land Court to hear and determine family
provision and testamentary
promise claims in the new Act.
The Family Court and the High Court should have concurrent
first instance jurisdiction in the new Act
- 11.28 We
recommend that the Family Court and the High Court should have concurrent first
instance jurisdiction to hear and determine
all matters relating to entitlements
and claims under the new
Act.720F[721] We make
recommendations on the role of the Māori Land Court later in the
chapter.
- 11.29 Most
submitters agreed with our proposal for concurrent first instance jurisdiction.
We acknowledge the views of some submitters
who felt that the Family Court
should have first instance jurisdiction as it is the most appropriate court to
deal with family matters
and that complex matters can be transferred to the High
Court. However, we prefer concurrent first instance jurisdiction for the
following reasons:
(a) We generally favour the Family Court retaining first instance jurisdiction
because of the “family” nature of the
claims under the new Act, the
relative accessibility of the Family Court and the proven expertise of the
Family Court. However, there
may be instances where it is appropriate for the
High Court to have jurisdiction, such as when the proceedings involve questions
affecting the estate that are in the exclusive jurisdiction of the High Court or
where the issues are particularly
complex.721F[722]
(b) The High Court and the Family Court have had concurrent first instance
jurisdiction with respect to proceedings under the FPA
and TPA for many years
and we have heard little criticism of that approach.
(c) We received feedback that the High Court procedures and case management
system enables cases to be heard more efficiently in
the High Court. In Chapter
12, we make recommendations to improve procedures in the Family Court.
(d) There is less risk in succession matters that a party will file in the High
Court for tactical advantage than in the context
of relationship property
division on
separation.722F[723]
- 11.30 We
recommend that, if proceedings have been commenced in the High Court and the
Family Court that relate to the same matter,
the High Court should hear the
claim. It is procedurally more efficient that all matters be considered by the
same court at the same
time.
- 11.31 We
recommend that both Courts should have the power to transfer proceedings to the
High Court. This may be done by application
to either Court, or the Family Court
may decide to transfer proceedings to the High Court on its own motion. We
recommend that the
new Act should contain directions on when proceedings already
filed in the Family Court, or a question in those proceedings, ought
to be
removed to the High Court. The Court should have regard
to:723F[724]
(a) the complexity of the proceedings or any question in issue in the
proceedings;
(b) any proceedings before the Family Court or the High Court that relate to the
same matters; and
(c) any other matter the judge considers relevant in the
circumstances.
- 11.32 We do not
recommend providing for the High Court to transfer proceedings to the Family
Court. We are cautious about creating
an additional procedural matter that could
be argued over and used to delay the resolution of substantive matters. We also
note that
the FPA and TPA do not include a power for the High Court to transfer
a matter to the Family Court, and we have encountered little
criticism of this
approach. No submitter called for a power to transfer proceedings to the Family
Court.
Jurisdiction for issues concerning the administration and
distribution of an intestate estate
- 11.33 In
Chapter 7 we make several recommendations about who should be eligible to
succeed in an intestacy. We note that the determination
of those eligible to
succeed may not be straightforward, and disputes may arise in some cases. For
example, difficult questions may
arise as to whether the deceased was in a
qualifying relationship with a surviving partner or whether a whāngai
relationship
should give rise to succession rights. We recommend that the Family
Court and the High Court have concurrent jurisdiction to hear
and determine
matters relating to eligibility in intestacies. The Family Court has specialist
jurisdiction regarding family relationships
and may be more accessible than the
High Court. The High Court has jurisdiction to consider other issues in relation
to the administration
of intestate estates, meaning it may be more efficient to
have the High Court deal with all matters if multiple issues arise.
- 11.34 In
relation to questions arising in connection with the tikanga concerning
whāngai relationships, we consider the Family
Court and the High Court
should be capable of resolving these issues. We discuss the courts’
ability to deal with matters of
tikanga further below when considering the role
of the Māori Land Court.
- 11.35 We
recommend that the High Court should continue to hold exclusive jurisdiction for
all other issues concerning the administration
and distribution of an intestate
estate. Most submitters who commented on this point agreed. We anticipate that
matters relating
to an intestacy are most likely to come before the court
because personal representatives apply for directions, such as on the validity
of a will. The High Court currently holds jurisdiction for such applications.
The new Act should permit appeals as of right against
interlocutory decisions that can have a significant impact on the parties’
rights and obligations
- 11.36 We
recommend that the new Act should permit appeals as of right against
interlocutory decisions that can have a significant
impact on the parties’
rights and obligations.724F[725]
Most submitters agreed with this proposal. The interlocutory decisions for which
parties should have an automatic right of appeal
should be:
(a) occupation, tenancy and furniture orders;
(b) transfers of the proceedings to the High Court;
(c) orders for disclosure of information; and
(d) applications regarding the removal of a notice of claim.
- 11.37 For all
other interlocutory decisions, claimants should obtain leave to appeal from the
Family Court or the High Court. This
recognises that, in exceptional cases, an
interlocutory decision of a procedural nature may also affect parties’
substantive
rights and liabilities while also minimising risks that parties
unduly protract proceedings with appeals.
- 11.38 The effect
of these recommendations would be to displace the general right of appeal under
section 124 of the District Court
Act where the appeal is from a decision of the
Family Court.725F[726]
- 11.39 We
acknowledge the submission by NZLS that all appeals should lie as of right and
the distinction between interlocutory matters
that have a significant impact on
parties’ rights and those that do not is unnecessary. We consider,
however, that to allow
all interlocutory matters to be appealed as of right may
delay proceedings significantly and is contrary to the objective of efficient
estate administration. We also acknowledge the concerns of Morris Legal that
allowing parties to appeal as of right an order for
disclosure of information
may result in an asset-holding party using the increased cost and delay to their
advantage. However, we
consider the same concern applies if we were to recommend
appeals for these matters had to be made by way of an application for leave
to
appeal. We think it is better that these matters have the benefit of a full
hearing when they arise.
- 11.40 We have
added applications regarding the removal of a notice of claim to the list we
presented in the Issues Paper. An application
to remove a notice of claim has
the potential to affect title to
land726F[727] and can have a
significant impact on the parties’ rights and obligations.
- 11.41 We expect
that applications to recover property outside an estate made in accordance with
our anti-avoidance recommendations
in Chapter 8 would be heard as part of an
application for an award under the new Act. We do not consider them to be
“an order
or a direction relating to a matter of procedure or for some
relief ancillary to the orders or declarations sought in the proceedings
or
intended
proceedings”.727F[728]
Rather, they are decisions that have a direct impact on the rights and
obligations of the parties involved in proceedings.
The jurisdictional limitations of the Family
Court
- 11.42 We
recommend that the Family Court should have jurisdiction to hear and determine
any related matter within the general civil
and equitable jurisdiction of the
District Court pursuant to sections 74 and 76 of the District Court Act in the
new Act. This should
include jurisdiction to grant any remedy pursuant to
section 84 of the District Court Act. This accords with our recommendations
regarding Family Court jurisdiction in the PRA review and reflects the plain
meaning of the relevant provisions of the Family Court
Act.728F[729] Three submitters
responded to this point, and they all agreed with our proposals.
- 11.43 To ensure
consistency across the new Act, our recommendations in the PRA review and the
approach taken in the Trusts Act, the
new Act should clarify that claims made
under the new Act and heard and determined in the Family Court are not subject
to the financial
limit imposed on the District
Court.729F[730]
- 11.44 Clarifying
the equitable jurisdiction of the Family Court in this way will not detract from
the statutes that require the High
Court to exercise jurisdiction for certain
succession matters, like the Administration Act and the Wills Act
2007.
The role of the Māori Land Court in contemporary
Aotearoa New Zealand
- 11.45 A
prominent theme during our consultation has been the desire for the Māori
Land Court to be a place where Māori may
go to resolve legal disputes
beyond whenua Māori.
- 11.46 We
acknowledge the varied roles the Māori Land Court has played in the past,
particularly in a succession
context.730F[731] In the Issues
Paper, we referred to several reports on the role of the Māori Land
Court.731F[732] We have also heard
feedback on the role of the Court during our consultation and throughout this
review generally. Essentially, what
we have heard is that there continues to be
a desire for the Court’s jurisdiction to be expanded to deal with
Māori issues
generally.732F[733] More thought
and consultation is required to fully consider the place of such a court in
contemporary Aotearoa New Zealand. This
involves consideration of where the
Māori Land Court sits within the wider framework of the court system, which
is outside the
scope of this review.
- 11.47 Despite
the limitations of this review, it is necessary and important to consider the
role of the Māori Land Court under
the new Act.
The role of the Māori Land Court under the new
Act
- 11.48 In
our view, it is important that the Māori Land Court’s knowledge,
experience and understanding of te ao Māori,
tikanga Māori and te reo
Māori is available, where appropriate, under the new Act. This may include
disputes about whether
an item is a taonga and disputes regarding taonga more
generally. We explain in Chapter 3 that, although we anticipate most such
disputes will be resolved without state law involvement, the state may still
play a role in facilitating the resolution of disputes
over taonga, both in and
out of court. We discuss the resolution of disputes out of court in Chapter
13.
Taonga
- 11.49 There
are several advantages the Māori Land Court has over the general courts
that favour the Māori Land Court having
exclusive jurisdiction over matters
involving taonga for succession matters generally:
(a) The Court is required to conduct proceedings in such a way as will best
avoid unnecessary formality and may also apply such rules
of marae kawa as the
judge thinks appropriate and make rulings on the use of te reo Māori during
a hearing.733F[734]
(b) Judges of the Māori Land Court are generally understood to be versed in
te reo Māori and tikanga
Māori.734F[735]
(c) Māori Land Court fees are lower than in both the Family Court and the
High Court.735F[736]
(d) The Court has powers to refer disputes to
mediation.736F[737] These
mediations may be conducted in a way more aligned with tikanga processes than
courtroom processes.
(e) We have heard that the Māori Land Court judges facilitate whānau
hui or mediation and that taonga are sometimes at
issue. This indicates that
some disputes around taonga are already being resolved through the Māori
Land Court.
(f) The Māori Land Court already has jurisdiction over taonga tūturu
under the Protected Objects Act 1975 and has exercised
that jurisdiction several
times.737F[738]
- 11.50 Despite
these advantages, we recommend that the Family Court, the High Court and the
Māori Land Court should have concurrent
jurisdiction for succession matters
involving taonga because:
(a) Succession proceedings are often complex and involve multiple issues. If the
Māori Land Court has exclusive first instance
jurisdiction over issues
involving taonga, multiple proceedings involving claims against the same estate
involving the same parties
may be spread across different courts. We have heard
similar concerns regarding the separation of jurisdiction for whenua Māori
from other succession matters.
(b) Parties may provide pūkenga (experts) in tikanga Māori to inform
the Family Court or the High Court on issues of tikanga
that come before them.
We also recommend in Chapter 12 that the Family Court and the High Court be able
to appoint a person to inquire
into or advise on matters of tikanga
Māori.
(c) We expect decisions from the Māori Land Court and the Māori
Appellate Court concerning taonga to carry considerable
weight when it comes to
the discussion of tikanga or its application.
(d) If issues of taonga are heard exclusively in the Māori Land Court, an
opportunity is lost for systemic improvement in relation
to the understanding of
tikanga Māori in the courts. We note the work currently being done to
improve this
understanding.738F[739]
(e) The Māori Land Court is already a busy institution, working to resolve
whenua issues for Māori. Expanding its workload
may detract from these
Important functions.
(f) The advantages the Māori Land Court has over the Family Court and the
High Court can still be available if claimants choose
to file their proceedings
in the Māori Land Court. We would expect most claimants to file with the
Māori Land Court where
the dispute only concerns taonga. We would also
expect the Family Court and the High Court to transfer proceedings or a question
in the proceedings to the Māori Land Court where it is appropriate.
- 11.51 This
recommendation is supported by our recommendations in Chapter 12 that, where
needed, Family Court and High Court judges
should receive education on tikanga
Māori and that the courts be able to appoint a person to inquire into and
advise on matters
of tikanga Māori.
- 11.52 Consistent
with our recommendations regarding transfers of proceedings, the Family Court
should have the power to order that
proceedings or a question in proceedings
concerning taonga be transferred to the High Court. We also recommend that both
the Family
Court and the High Court be able to transfer proceedings or a
question in the proceedings to the Māori Land Court. This recognises
the
appropriateness of hearing issues relating to taonga in the Māori Land
Court.
- 11.53 As
mentioned above, the Māori Appellate Court has jurisdiction to hear appeals
from the Māori Land Court, with appeals
from the Māori Appellate Court
to be made to te Kōti Pīra | Court of Appeal (the Court of Appeal) or
te Kōti
Mana Nui | Supreme Court in exceptional
circumstances.739F[740] A question
arises as to which court any appeal from a decision of the Māori Land Court
in respect of claims relating to taonga
should be made. It may be undesirable to
have two different lines of appeal, one through the Māori Appellate Court
(from the
Māori Land Court) and another through the High Court (from the
Family Court) for matters concerning taonga (although we note
that appeals from
both the High Court and the Māori Appellate Court are to the Court of
Appeal). It is also desirable that appeals
on all matters arising (including
those relating to taonga) can be heard in the same court at the same time. While
these factors
might be seen to favour appeal from the Māori Land Court to
the High Court, it is also important to recognise the value of appeals
concerning taonga being heard in the Māori Appellate Court, given its
significant expertise in tikanga Māori and its current
jurisdiction under
TTWMA.
- 11.54 Any
changes from the current appeal rules in TTWMA would require amendment to TTWMA.
We therefore recommend the Government considers
further how to provide for
appeals in relation to matters concerning taonga.
Probate and administration
- 11.55 We
have received feedback supporting an extended role for the Māori Land Court
in relation to granting probate and letters
of administration. A key concern
expressed is that, where an estate comprises whenua Māori and other
property, people often
are required to have probate or letters of administration
granted in the High Court in addition to having their succession to whenua
Māori processed in the Māori Land Court. This creates additional
barriers in the succession process that non-Māori
do not experience.
- 11.56 We
described in the Issues Paper the long history of the Māori Land
Court’s involvement in succession beyond whenua
Māori. We also noted
that there is a risk of unintended consequences in extending the jurisdiction of
the Māori Land Court
in this way given the specialised nature of probate
and administration matters in the High Court. For example, the High Court holds
significant other powers such as jurisdiction to determine matters of
testamentary capacity and the power to validate a document
as a will under
section 14 of the Wills Act.
- 11.57 We
therefore recommend that the Government consider whether the Māori Land
Court should have jurisdiction to grant probate
and letters of administration
regarding matters already before the Māori Land Court only where the
applications are uncontested.
We anticipate that these powers might work in the
following way. An applicant would file for probate or letters of administration,
or could be directed to do so, alongside their succession application for
Māori freehold land. Where the Māori Land Court
is satisfied that the
application for probate or letters of administration is uncontested, it might
make orders granting probate
or letters or administration alongside the
succession orders. Where the Māori Land Court is not satisfied that the
matter is
uncontested, it would refer the matter to the High Court. Claimants
would still be able to apply directly to the High Court where
it is appropriate
to do so, including where there is an issue clearly requiring a decision by the
High Court. We accept THRMOA’s
submission that the alternative of the
Māori Land Court having an active liaison role with the High Court in this
regard is
likely to cause further delays rather than make the process simpler
and do not recommend that the Government considers this option.
Family provision and testamentary promises
- 11.58 As
we noted in Chapters 5 and 6, it seems strange that, in light of the emphasis in
TTWMA on Māori freehold land being
a taonga tuku iho, a court can order the
redistribution of that land under the FPA and TPA. In those chapters, we suggest
that the
Government should consider further whether and, if so, how family
provision awards and testamentary promise awards under the new
Act should apply
to succession to Māori freehold land. The Government should also consider
the jurisdiction of the Māori
Land Court to hear and determine family
provision and testamentary promise claims under the new Act, should Māori
freehold land
continue to be subject to these claims.
CHAPTER 12
Resolving disputes in court
IN THIS CHAPTER,
WE CONSIDER:
- limitation
periods for making claims;
- disclosure of
information;
- evidence;
- representation
of minors or people deemed by law to lack capacity;
- costs;
- delays in te
Kōti Whānau | Family Court; and
- tikanga
Māori and dispute resolution in court.
INRODUCTION
- 12.1 In
Chapter 2 of this Report, we discuss the criteria that we think will lead to
good succession law, including the promotion
of efficient estate administration
and dispute resolution. In this chapter, we discuss several important procedural
matters aimed
at the just and efficient resolution of claims under the new Act
when those disputes reach court, consistent with that goal and with
the
objectives of the court
rules.740F[741] We also consider
actions that can be taken to improve the recognition of tikanga within te
Kōti Whānau | Family Court (the
Family Court) and in te Kōti
Matua | High Court (the High Court).
LIMITATION PERIODS
Current law
- 12.2 Generally,
proceedings under the Property (Relationships) Act 1976 (PRA), the Family
Protection Act 1955 (FPA) and the Law Reform
(Testamentary Promises) Act 1949
(TPA) must be commenced within 12 months from the grant of
administration.741F[742] A
two-year period applies if the application is made under the FPA by a personal
representative on behalf of a person who is not
of full age or mental
capacity.742F[743]
- 12.3 The court
may extend the time limits in some circumstances, although an application for an
extension cannot be made after the
final distribution of the estate. The TPA and
PRA do not define what is meant by final distribution. However, case law has
established
that, in proceedings under these Acts, it means the point where the
personal representative has completed administration of the estate
and becomes
the trustee for the beneficiaries of those assets, even if those assets have not
actually been
distributed.743F[744] A different
approach is taken under the FPA, where section 2(4) clarifies that, for the
purpose of that Act, distribution will not
be deemed to have occurred simply
because the administrator has finished their administrative duties in respect of
that property
and they or another trustee are holding the property on
trust.744F[745] Final distribution
requires that the assets are transferred to those beneficially
entitled.745F[746]
- 12.4 A surviving
partner has six months from the grant of administration in Aotearoa New Zealand
in which to make an election under
the PRA whether to seek division under the
Act (option A) or accept whatever provision is made for them under the deceased
partner’s
will or on their intestacy (option
B).746F[747] A surviving partner
must have chosen option A to commence proceedings under the
PRA.747F[748] The court may extend
the time for making the
choice.748F[749] If a surviving
partner makes no election within the relevant timeframe, including any extended
timeframe, they are deemed to have
chosen option
B.749F[750] A court may set aside
a surviving partner’s chosen option in some
circumstances.750F[751]
- 12.5 Section 47
of the Administration Act 1969 sets out the circumstances in which personal
representatives may distribute an estate
without facing liability to potential
claimants.751F[752] As a general
rule, they may make distributions six months from the grant of administration
provided they have not received notice
of a potential
claim.752F[753] Where a person of
full legal capacity has consented to the distribution, that person also loses
the right to bring an action against
the personal
representative.753F[754]
- 12.6 A personal
representative will be protected when they make early distributions for the
maintenance, support or education of any
person partially or totally dependent
on the deceased immediately before the deceased’s death. Such
distributions may be made
even if the personal representative has notice of an
intended claim, and any distribution made for this purpose, if properly made,
cannot be later
disturbed.754F[755]
- 12.7 In certain
circumstances, claimants may have the ability to “follow” the estate
property into the hands of a beneficiary
after distributions have been
made.755F[756] This process is set
out in sections 49–52 of the Administration Act. The court has
considerable discretion as to the form and
extent of the orders it may
make.756F[757] It may require the
transfer or payment of any interest in any assets distributed or the payment of
a sum not exceeding the net value
of the assets at the date of distribution
(with interest if the court thinks equitable). A following order may be made
against the
recipient of the distributed assets who received those assets
otherwise than in good faith and for full valuable consideration. The
court may
make the following order on terms and conditions that it thinks fit and may make
any further orders to give effect to the
following order.
- 12.8 A following
order requires a separate court application to the substantive application under
the TPA and FPA, but this must also
be made within the same time limits for
making claims.757F[758] The court
does not have the general power to grant an extension of time for the making of
a following order,758F[759] but if
an applicant was not aware of the distribution at the time of filing a
substantive application, they may still make an application
for a following
order if they do so within six months of first becoming aware of the
distribution.759F[760] Failure to
comply with that six-month time limit, however, is an absolute bar to following
the assets.760F[761]
Issues with time limits under the PRA, FPA and
TPA
- 12.9 There
appears to be broad satisfaction with the 12-month time limit for commencing
proceedings under the Acts. We have heard
that the two-year timeframe for FPA
claims on behalf of minors and those deemed by law to lack capacity can cause
problems because
estates are often wound up in this timeframe.
- 12.10 In Chapter
4, we discuss the issues with the six-month time limit for electing option A or
option B under the PRA.
- 12.11 Several
issues may arise in respect of final distribution. Restricting a court’s
power to extend time limits or make other
orders761F[762] up to the point an
estate has been finally distributed provides certainty and protection for
personal representatives and beneficiaries.
However, it can unfairly impact on
claimants with legitimate claims. Claimants may be forced to bring claims
against personal representatives
personally.762F[763] It is also
confusing that what constitutes final distribution differs depending on the
statute and is not clearly defined in
legislation.763F[764] It is not
always obvious to interested parties when final distribution has
occurred.
Issues with distribution
- 12.12 Our
preliminary engagement revealed mixed views about whether six months from the
grant of administration in Aotearoa New Zealand
is a suitable period to wait for
an estate to be distributed. The six-month period may be justified because it
allows claimants time
to find out about the estate and consider their options
while not excessively delaying distribution. However, issues can arise because
of the difference between a six-month hold for distribution and the general
12-month time limit for making claims. There may also
be occasions where a
personal representative wishes to distribute earlier than the six-month period.
At present, a personal representative
would make this decision after assessing
the risk of claims and obtaining indemnities from beneficiaries or other
potential claimants.764F[765]
- 12.13 There is
little case law available on section 47(2) of the Administration Act regarding
the protection of distributions made
to provide for maintenance, support and
education, and we are unaware how frequently personal representatives rely on
it. Personal
representatives could potentially distribute property using the
section 47(2) power with the effect of leaving insufficient property
to meet
other claims against the
estate.765F[766] However, our
preliminary engagement indicated that this had not been an issue in practice.
- 12.14 Sections
49–52 of the Administration Act, which deal with the following of assets,
are difficult to understand and may
cause confusion.
Results of consultation
- 12.15 Submitters
to the Issues Paper, including Public Trust, Perpetual Guardian, Te Kāhui
Ture o Aotearoa | New Zealand Law
Society (NZLS), the Family Law Committee of
Auckland District Law Society (ADLS), Morris Legal and Bill Patterson, were
broadly satisfied
with our proposals in the Issues Paper relating to the
limitation periods.
- 12.16 ADLS
commented that few problems occur under the current time limits and it is open
to personal representatives to obtain indemnities
from potential claimants if
distribution is considered appropriate. Public Trust also agreed that the
protections in section 47 of
the Administration Act should be retained because
they provide certainty to personal representatives who wish to distribute an
estate
without facing liability to potential claimants. Community Law Centres o
Aotearoa (Community Law) submitted that many of their clients
are unaware of the
12-month deadline. Community Law said that there is need for clear and
consistent information to be widely available.
- 12.17 Both
Public Trust and ADLS agreed with our proposal not to have a longer two-year
period available for minors or other claimants
who are deemed by law to lack
capacity as this can cause unnecessary delays in finalisation of an estate.
- 12.18 Public
Trust, Morris Legal and Patterson expressed their support for a consistent
definition of final distribution across the
respective claims. Patterson agreed
that the definition used in the FPA is preferable. Conversely, Morris Legal
submitted that the
definition should align with the definition that has
developed in case law under the TPA and PRA, meaning that final distribution
has
occurred when the personal representative has completed administration of the
estate and become trustee for the beneficiaries
of those assets, even if those
assets have not actually been distributed. Morris Legal submitted that this is a
pragmatic limit that
would increase certainty for all parties.
- 12.19 Patterson
submitted that sections 45–51 of the Administration Act need rewriting as
they lack clarity.
Conclusions
RECOMMENDATIONS
R90
Applications for relationship property awards, family provision awards and
testamentary promise awards under the new Act should be
made within 12 months
from the grant of administration in Aotearoa New Zealand.
R91
Where an estate can be lawfully distributed without a grant of
administration, applications for relationship property awards, family
provision
awards and testamentary promise awards should be made within the later of:
- 12
months from the date of the deceased’s death; or
- 12
months from the grant of administration in Aotearoa New Zealand (if the grant is
made within six months of the deceased’s
death).
R92
A court should have discretion to grant an extension to bring a claim under
the new Act provided the application for extension is
made before the final
distribution of the estate.
R93
The new Act should provide that final distribution of an estate will occur
when all estate assets are transferred to those beneficially
entitled rather
than when the personal representative has finished their administrative duties
and is holding the property on trust.
R94
Personal representatives should be protected against personal liability from
claimants under the new Act where they distribute any
part of the estate in the
circumstances prescribed in section 47 of the Administration Act 1969.
- 12.20 Any time
limit for claims under the new Act must balance the need to avoid undue delay in
the administration and distribution
of an estate with the need to ensure that
those with a genuine claim have sufficient time to make it. The limitation
periods should
work cohesively together to the extent that is practicable.
- 12.21 A personal
representative should continue to be protected against personal liability to
claimants under the new Act where the
personal representative distributes any
part of the estate in the circumstances prescribed in section 47 of the
Administration Act.
While we note the potential problems with a personal
representative’s power to distribute to the deceased’s dependants
for their maintenance, support or education, we think limits on this power, or
its repeal, are not desirable reforms. We are reassured
that no concerns about
this provision were raised with us in consultation.
- 12.22 Proceedings
for claims under the new Act should be commenced within 12 months from the grant
of administration in Aotearoa New
Zealand.
- 12.23 For
decades, this has been the time period for FPA and TPA claims, and it appears
relatively uncontroversial. We anticipate
that 12 months would generally be
sufficient time for potential claimants under the new Act to determine their
eligibility and evaluate
their prospect of success. We note that 12 months is at
the upper end of the limitation periods for family provision-type claims
in
comparable jurisdictions.766F[767]
- 12.24 Claims
relating to estates that can be lawfully distributed without a grant of
administration should be made within the later
of:
(a) 12 months from the date of the deceased’s death; or
(b) 12 months from the grant of administration in Aotearoa New Zealand (if the
grant is made within six months of the deceased’s
death).
- 12.25 There
should not be an extended limitation period for claims made on behalf of minors
or persons deemed by law to lack capacity.
Because estates may be distributed
after six months, our view is that there is no significant benefit in permitting
a two-year limit.
- 12.26 We
recommend that courts should retain their discretion to allow claims to be made
beyond the express time limits provided that
the application is made before
final distribution of the estate. This will ensure that the courts can continue
to consider some claims
outside of time where
justified.767F[768]
- 12.27 We also
recommend that final distribution should be defined in the new Act. For the
purposes of the new Act, final distribution
will have occurred when all estate
assets are transferred to those beneficially entitled rather than when the
personal representative
has finished their administrative duties and is holding
the property on trust. We think that this interpretation of final distribution
accords more closely with people’s expectations. The current law regarding
the following of assets and the restrictions on
disturbing distributions would
continue to apply.768F[769]
- 12.28 However,
as we discuss in Chapter 7, there are many sections of the Administration Act
that are difficult to understand and
should be rewritten in accordance with
modern drafting standards. We agree with Patterson that the sections that deal
with the following
of assets and the protections of personal representatives and
persons acting on administration are good examples of these inaccessible
provisions.
DISCLOSURE OF INFORMATION
Current law
- 12.29 Section
11A of the FPA provides that personal representatives have a duty to place
before the court all relevant information
in their possession concerning the
financial affairs of the estate and the deceased’s reasons for making the
dispositions made
by the will or for not making any further provision, as the
case may be. This duty to provide the court with relevant information
about the
deceased’s reasons will override any claim to legal privilege in the
context of a solicitor-client
relationship.769F[770] There is no
equivalent provision in the TPA. However, the same principle is treated as
applying to TPA
proceedings.770F[771]
- 12.30 In Chapter
4, we discuss several specific rules relating to the classification of
relationship property, including the presumption
that all property owned by the
deceased partner or acquired by the estate is relationship
property.771F[772] Those rules
place an onus on the personal representatives to disclose information if they
want to resist a finding that the property
of the estate is relationship
property. No corresponding rule applies to the property of the surviving
partner.
- 12.31 Under both
the Family Court Rules and the High Court Rules, discovery is available to any
party who has filed a pleading in
respect of any of the
Acts.772F[773] Pre-action
discovery orders may also be available for intending claimants provided they
have a strong foundation for the
order.773F[774]
Recommendations in the PRA review
- 12.32 In
the PRA review, we observed that situations may arise where one partner has
greater knowledge of the couple’s relationship
property affairs but
refuses to make adequate disclosure, thereby putting the other partner at a
disadvantage.774F[775]
- 12.33 We made
several recommendations aimed at encouraging a culture of compliance with
disclosure obligations when resolving relationship
property matters in and out
of court.775F[776] These included
recommending
that:776F[777]
(a) the new Relationship Property Act include an express duty of disclosure on
partners;
(b) new pre-action procedures include a prescribed process for complying with
the duty of disclosure prior to making an application
to the Family Court; and
(c) new procedural rules include the procedure for initial and subsequent
disclosure in relationship property proceedings.
Issues
- 12.34 We
have heard from lawyers that it can be difficult for potential claimants to
obtain relevant information needed to assess
the viability of the claim or to
resolve that claim outside of court. We discuss this issue in Chapter 13.
- 12.35 Obtaining
relevant information once a claim had been filed seems to be more
straightforward. However, issues arise about the
disclosure of irrelevant
information, particularly when affidavits and annexures total tens or hundreds
of pages or denigrate the
character and motives of another family
member.777F[778]
Results of consultation
- 12.36 In
the Issues Paper, we proposed that the new Act includes an express duty on the
personal representative to assist the court,
similar to that in section 11A of
the FPA. We received limited submissions about this proposal. ADLS submitted
that generally a personal
representative’s affidavit will address the
relevant matters, and when it does not, this is often linked with a personal
representative
not understanding their requirement to take a neutral position in
proceedings (we discuss the role of the personal representative
in Chapter 14).
Public Trust and Perpetual Guardian submitted that they agreed with the proposed
express duty.
- 12.37 Public
Trust and ADLS agreed with our proposal that, in respect of relationship
property claims, the surviving partner and the
personal representative should
have a duty to disclose each partner’s assets and liabilities. Public
Trust submitted that it
may enable parties to assess the merits of claims and
potentially encourage settlements. ADLS also agreed that the quality and clarity
of the information disclosed may be improved by updated affidavit
forms.
Conclusions
RECOMMENDATIONS
R95
The new Act should include an express duty on personal representatives to
assist the court, similar to that in section 11A of the
Family Protection Act
1955. As part of that duty, on any application under the new Act, personal
representatives should have an obligation
to place before the court all relevant
information in their possession or knowledge concerning details of:
- members
of the deceased’s family;
- the
financial affairs of the estate;
- any
transaction or joint tenancy between the deceased and a third party in respect
of which an application has been made to recover
property from the third party
to meet a claim;
- persons
who may be claimants under the Act; and
- the
deceased’s reasons for making the testamentary dispositions and for not
making provision or further provision for any
person.
R96
In proceedings for the division of relationship property, the surviving
partner and the personal representative should have a duty
to disclose each
partner’s assets and liabilities, and this should be expressed in the new
Act.
R97
Affidavit forms should be created for the applications under the new Act to
ensure appropriate information is made available.
- 12.38 We
recommend that the new Act should include an express duty on the personal
representative to assist the court, similar to
that in section 11A of the FPA.
This would provide that a personal representative who had received notice of an
application for an
award under that Act would have an obligation to place before
the court all relevant information in the personal representative’s
possession or knowledge concerning details of:
(a) members of the deceased’s family;
(b) the financial affairs of the estate;
(c) any transaction or joint tenancy between the deceased and a third party in
respect of which an application has been made to recover
property from the third
party to meet a claim (see R57 in Chapter 8);
(d) persons who may be claimants under the Act; and
(e) the deceased’s reasons for making the testamentary dispositions and
for not making provision or further provision for any
person.
- 12.39 This would
not require the personal representative to make enquiries beyond their ordinary
duties when administering and distributing
an estate but rather to make
available to the court the information they already hold.
- 12.40 When an
application is made to recover property from a third party, that party should be
joined as a party to the proceeding
and discovery could be sought.
- 12.41 We also
recommend that, in respect of relationship property claims, the surviving
partner and the personal representative should
have a duty to disclose each
partner’s assets and liabilities, and this should be expressed in the new
Act.
- 12.42 We
consider that the quality and clarity of the information disclosed may also be
improved by updated affidavit forms. A form
similar to PR (1) Affidavit of
Assets and Liabilities should be created for personal representatives and
surviving partners to complete
in relationship property
proceedings.778F[779] A similar
form should also be created for the personal representative to complete when a
family provision claim or testamentary promise
claim is made. This would detail
the estate’s assets and liabilities as well as details about property the
deceased owned in
joint tenancy at the time of death. A form for an affidavit in
support for each of the claims under the new Act should also be created
with
accompanying guidance on relevant and non-relevant information.
EVIDENCE
Current law
- 12.43 In
FPA and PRA proceedings, evidence is usually given by affidavit regardless of
whether they are in the Family Court or the
High
Court.779F[780] In TPA
proceedings, affidavit evidence is preferred in the Family Court, whereas the
presumption in the High Court is that evidence
will be given orally unless the
judge directs otherwise.780F[781]
A commonly cited reason for receiving evidence by way of affidavit in FPA claims
is that the deceased’s evidence cannot be
led or
tested.781F[782]
- 12.44 Under the
FPA and PRA, cross-examination is allowed in exceptional circumstances where
allegations are specific and
serious.782F[783] It is
discouraged, particularly where it is sought by family members as a means of
disparaging each other’s
character.783F[784] Affidavits in
reply may also be made but must not introduce new
matters.784F[785]
- 12.45 Section 11
of the FPA provides that the court can hear reasons for dispositions or for
leaving someone out of the will, whether
that evidence would be otherwise
admissible in court or not.
Issues
- 12.46 It
is unclear why, for TPA proceedings, affidavit evidence would be suitable in the
Family Court but not suitable in the High
Court.785F[786]
Results of consultation
- 12.47 Public
Trust, NZLS and ADLS agreed that affidavit evidence should be consistently
preferred across the claims. Jan McCartney
QC commented that, to reduce the
number of affidavits, a single brief of evidence should be
required.
RECOMMENDATION
R98
Conclusions
Unless a judge directs otherwise,
affidavit evidence should be preferred for all claims under the new Act
irrespective of the court
in which the proceeding is commenced.
- 12.48 We
recommend that, unless a judge directs otherwise, affidavit evidence should be
preferred for all claims under the new Act
irrespective of which court the
proceeding is commenced
in.786F[787] In our view, this
will facilitate a consistent and efficient approach to giving evidence and
minimise the time and expense spent
on oral evidence. This approach would also
be consistent with the recommendation by the judicial subcommittee on access to
justice
for evidence at trial in the High Court to be given by way of affidavit
and viva voce evidence in chief to be given only on areas
of significant factual
contest.787F[788]
REPRESENTATION OF MINORS AND PERSONS DEEMED BY LAW TO LACK
CAPACITY
Current law
- 12.49 Section
4(4) of the FPA states that an administrator of the estate may apply
for further provision from the estate on behalf
of a person who is not of full
age or mental capacity. They may also apply to the court for advice or
directions as to whether they
ought to apply for such further provision.
- 12.50 Section
37A of the PRA allows the court to appoint a lawyer to represent any minor or
dependent child of the relationship if
there are special circumstances that make
the appointment necessary or desirable.
- 12.51 In
proceedings under the FPA or the TPA, both the Family Court and the High Court
may also make representation orders for minors
or people who lack
capacity.788F[789] The appointed
party may be the personal representative, counsel, a litigation guardian or
Public Trust.
- 12.52 When a
claimant files for directions as to service, they also apply for orders of
representation that might be required. In
the case of minor children, it is
customary for the claimant to obtain and file the consent of counsel where the
claimant is requesting
the court to appoint that counsel to represent such
children.789F[790] This generally
means that the claimant is expected to find a lawyer to represent the minor
child with the hope that the lawyer will
get paid from the estate.
- 12.53 Article 12
of the United Nations Convention on the Rights of the Child provides that
children are given the right to freely
express their views in all matters that
affect them and to have their views given due weight in accordance with their
age and maturity.
This includes their right to be heard in any judicial and
administrative proceedings affecting the child, either directly or through
a
representative or an appropriate body, in a manner consistent with the
procedural rules of national law.
- 12.54 Article 12
of the United Nations Convention on the Rights of Persons with Disabilities
reaffirms that persons with disabilities
have the right to equal recognition
before the law. This includes disabled people’s right to have the state
take appropriate
measures to provide access to support needed to exercise their
legal capacity and to enable them to control their own financial
affairs.790F[791]
Issues
- 12.55 When
FPA claims are made on behalf of minor children, these are generally brought by
the child’s guardian, and it appears
to be uncommon for minor children to
take an active role in proceedings that directly or indirectly affect them.
Similarly, in the
Commission’s review of the PRA, we observed that
“it is unusual for children to participate in relationship property
proceedings or for a lawyer for child to be
appointed.”791F[792]
- 12.56 Personal
representatives are not under a general duty to initiate FPA applications.
However, te Kōti Pīra | Court
of Appeal stated in Re Magson
that, in a clear case, a duty would
apply.792F[793] Although section
4(4) of the FPA states that a personal representative may apply on behalf of any
person not of full age or mental
capacity, it fails to provide any guidance
about when personal representatives should make such an application.
Recommendations in the PRA review
- 12.57 The
Commission made several recommendations in the PRA review aimed at giving
greater priority to children’s best interests
in respect of relationship
property matters following parental separation, which we considered should be a
primary consideration
in the new Relationship Property
Act.793F[794] This included the
recommendation that the Government considers ways to strengthen child
participation in relationship property proceedings
in any work undertaken in
response to the recommendations of the Independent Panel appointed to examine
the 2014 family justice
reforms.794F[795]
Results of consultation
- 12.58 In
the Issues Paper, we expressed the preliminary view that the primary
responsibility to bring a family provision claim on
behalf of a minor child
should lie with the child’s parent or guardian. We suggested that a
welfare guardian might take this
primary responsibility for an adult lacking
capacity.
- 12.59 We
proposed that section 4(4) of the FPA be repealed, and in its place, a personal
representative would have a statutory duty
to notify potential relationship
property and family provision claimants of relevant information related to their
rights under the
new Act. Additionally, we proposed that, when any minor child,
person lacking capacity or unascertained party wishes to claim or
may be
affected by a claim under the new Act, the court must appoint a representative
for that party.
- 12.60 Public
Trust submitted that, in some cases, welfare guardians, property managers and/or
attorneys may be well placed to advocate
for incapacitated claimants because
they have statutory duties under the Protection of Personal and Property Rights
Act 1998.
- 12.61 ADLS
agreed that the primary responsibility should lie with a minor child’s
parent or guardian and the welfare guardian
of a person lacking capacity. ADLS
said that, in some circumstances, the personal representative should have the
responsibility to
organise a court-approved lawyer to represent the interests of
a minor child and to seek a direction from the court that the reasonable
costs
of the child’s lawyer be paid by the estate.
- 12.62 Morris
Legal submitted that personal representatives should be able to apply for
further provision from the estate on behalf
of a person who is not of full age
or mental capacity under the new Act, as they are currently able to under
section 4(4) of the
FPA, but there should be clear guidance in the new Act about
when a personal representative is required to make an application on
behalf of a
vulnerable potential claimant. Morris Legal submitted that this is preferable to
requiring the person’s parent
or guardian to apply as they are more likely
to be in a position of conflict.
Conclusions
RECOMMENDATION
R99
When any minor child or adult deemed by law to lack capacity wishes to claim
or may be affected by a claim under the new Act, the
court should appoint a
representative for that party. The court must similarly appoint a representative
for any unascertained party
who may be affected by a claim under the new Act.
These representation orders should be made at the time of giving directions for
service.
- 12.63 We
consider that the primary responsibility to bring a family provision claim on
behalf of a minor child should lie with the
child’s parent or guardian
rather than resting on a personal representative. A welfare guardian, property
manager or person
holding a power of attorney might take this primary
responsibility for an adult deemed by law to lack capacity. We suggest that
lacking
capacity is defined consistently with the definition in section 9 of the
Trusts Act 2019 so that an adult lacks capacity when they
are not competent to
manage their own affairs for any reason, including when they are subject to an
order appointing a manager or
trustee corporation to manage their property under
sections 31–33 of the Protection of Personal and Property Rights
Act.795F[796]
- 12.64 We
therefore recommend that section 4(4) of the FPA should be repealed. In its
place, personal representatives should have a
statutory duty to notify surviving
partners of their rights under the new Act and to provide them with information
about the claims,
relevant time limits and obtaining independent legal advice.
If the Government decides to implement Option Two of our family provision
recommendations for children, a personal representative should also have a
statutory duty to notify any child of the deceased potentially
eligible under
that option. We further discuss the duty to give notice and make related
recommendations in Chapter 14.
- 12.65 In respect
of out-of-court dispute resolution processes, we consider that, when any minor
child or person deemed by law to lack
capacity wishes to claim or may be
affected by a claim under the new Act, the court must appoint a representative
for that party.796F[797] The court
must similarly appoint a representative for any unascertained party who may be
affected by a claim under the new Act. We
discuss this process further in
Chapter 13.
- 12.66 We
recommend that the same requirement should apply to court proceedings. These
representation orders should be made at the
time of giving directions of
service. It appears that both the Family Court and the High Court’s
existing powers would be sufficient
to enable these representation orders to be
made.
- 12.67 Tāhū
o te Ture | Ministry of Justice has an ongoing programme of work focused on
enhancing children’s participation
in Family Court
proceedings.797F[798] Our view is
that this work programme should include participation in proceedings under the
new Act.
COSTS
Current law
- 12.68 Costs
are at the discretion of the
court.798F[799] Historically, it
was common in FPA proceedings for the court to order that costs be paid from the
estate.799F[800] We understand
that it is now usual in claims against an estate for costs to follow the event
(that is, to be awarded in favour of
the successful
party).800F[801] However, the
court may consider the family context of proceedings and be reluctant to
exacerbate family rifts by personal costs
orders.801F[802]
- 12.69 Reprehensible
conduct in the course of proceedings that causes delay and expense may be
reflected in costs.802F[803]
- 12.70 A personal
representative’s full costs will generally be paid by the estate unless
the personal representative has acted
unreasonably.803F[804]
Recommendations in the PRA review
- 12.71 In
the PRA review, we concluded that it is appropriate, as a general principle,
that costs in PRA proceedings lie where they
fall because of the distinctive
characteristics of such
proceedings.804F[805] It would
reflect the semi-inquisitorial approach taken by the Family Court in
relationship property proceedings and recognise that
the nature of those
disputes means that each partner will have “successes” and both
partners will benefit from resolution.
- 12.72 A common
feature we noted in disputes about relationship property on separation was
intentional tactics to delay or disrupt
proceedings. We
recommended:805F[806]
(a) a new Relationship Property Act should make express provision for the Family
Court to impose costs and other consequences for
non-compliance with procedural
requirements;
(b) new procedural rules and guidance should be issued addressing the imposition
of costs and other consequences of non-compliance
with procedural requirements
as well as the exercise of the Court’s discretion to make costs orders
that are not for the purpose
of penalising non-compliance; and
(c) the establishment of a separate scale of costs for relationship property
proceedings because of their distinctive characteristics.
Issues
- 12.73 Commentators
do not identify any significant problems with the current costs regime in
relation to proceedings dealing with
claims against estates. The previously
common approach of ordering costs to be paid from the estate has been criticised
for potentially
encouraging unmeritorious claims and at times exhausting smaller
estates.806F[807] There appears to
be broad satisfaction now with the courts’ flexible approach and the move
towards general cost principles
under the court rules.
Results of consultation
- 12.74 The
small number of submitters who commented on costs gave differing views about the
approach that courts should take. Public
Trust and ADLS agreed that the
courts’ current flexible approach to costs was working and the courts
should continue to have
discretion as to costs. Chris Kelly and one other
submitter considered that costs should generally be borne by the estate. In
Kelly’s
experience, imposing costs on a losing party does not encourage
settlement or early resolution between parties in estate disputes,
as it would
in most forms of civil litigation. The risk of costs being awarded is frequently
ignored or misunderstood by grieving
family members who want a chance to
vindicate their position in court. Kelly suggested that, where it is necessary
to do justice
between the parties, the court should have discretion to increase,
decrease or waive scale costs or to direct that any or all parties
should meet
their own costs.
- 12.75 Several
submitters, including Public Trust, NZLS and ADLS, said that there should be a
separate scale of costs for claims under
the new Act. NZLS submitted that a
scale developed for relationship property proceedings would be sufficient for
this purpose.
- 12.76 Public
Trust also expressed support for the establishment of guidance regarding costs
for non-compliance with procedural requirements,
noting that there are many
different circumstances that warrant the court’s discretion regarding
costs, including parties’
conduct, or a failure to comply with procedural
requirements after a claim has commenced.
Conclusions
RECOMMENDATIONS
R100
The new Act should contain a provision expressly referring to the
court’s power to make cost orders as it thinks fit.
R101
The new Act should make express provision for the court to impose costs for
non-compliance with procedural requirements.
R102
A separate scale of costs should be established for proceedings under the new
Act (which may be the scale of costs recommended in
R107 of the PRA review).
- 12.77 We
recommend no change to the general rule that a court has discretion to order
costs against parties as it sees fit.
- 12.78 The new
Act should contain a provision expressly referring to the court’s power to
make cost orders as it thinks
fit.807F[808] Just as we
recommended in the PRA review, the new Act should also expressly refer to the
court’s ability to impose costs for
non-compliance with procedural
requirements.808F[809] This would
signal to parties what is expected of them, although our understanding is that
non-compliance is less of an issue for
claims against estates than it is for
relationship property claims on separation. General guidance about the
obligation on parties
to comply with procedural requirements and the potential
repercussions for failing to do so could also be included in updated affidavit
forms.
- 12.79 The
feedback we received from the Practitioner Survey and consultation was mostly
positive towards the courts’ move away
from the general presumption that
costs are borne by the estate. This was because of concerns that such a
presumption may encourage
unmeritorious claims and discourage parties from
reaching settlement. Additionally, costs borne by the estate may deplete small
estates
or unfairly impact on one beneficiary.
- 12.80 Our view
is that, in relationship property proceedings on death, it will often be
appropriate for costs to lie where they fall
for the same reasons that the
Commission gave for proceedings for relationship property division on
separation. Frequently, these
proceedings will be about the classification of
relationship property and there will not be “successes” as in other
civil
proceedings. For family provision and testamentary promise claims, it may
be more common for costs to be paid by the unsuccessful
party following the
proceeding. Flexibility will be particularly important in proceedings that
consider multiple different claims.
We acknowledge that there are unique
emotional elements to succession disputes where parties are grieving and at
times this may factor
into the cost awards that are made, but we do not agree
that it should always result in a presumption that costs will be borne by
the
estate.
- 12.81 We
recommend that a separate scale of costs should be established for proceedings
under the new Act. This could be the same
scale developed for proceedings under
the Commission’s proposed new Relationship Property Act or it may be a
separate scale.809F[810] Many of
the distinctive characteristics of relationship property proceedings on
separation are shared with the claims under the new
Act and therefore may better
suit a scale developed for that purpose than a scale applicable to all civil
claims. Where claims are
also made that sit outside of the new Act, meaning that
the proceeding must be heard in the High Court, the High Court should apply
its
usual approach to costs, although it may take account of the proposed new
scale.810F[811] It will be
appropriate for the relevant Rules Committees to consider these matters
further.
DELAYS IN THE FAMILY COURT
- 12.82 The
Independent Panel examining the 2014 family justice reforms reported that delay
in the Family Court impacted on almost every
other issue in family justice
services.811F[812] In the PRA
review, we identified that a key issue with the procedure governing proceedings
under the PRA was the delays experienced
in the Family
Court.812F[813] We observed that,
in 2015, half of the cases that proceeded to a hearing took more than two years
from filing to disposal.813F[814]
- 12.83 On
average, TPA and FPA cases take more than 60 weeks from filing to disposal in
the Family Court,814F[815]
significantly longer than the intended 26
weeks.815F[816]
The PRA review
- 12.84 In
the PRA review, we explained that the delays in relationship property
proceedings were attributable to multiple factors.
These included the complex
legal and factual issues that arise about property, the emotional component of
separating partners and
the lack of a structured case management process with
prescribed timeframes.816F[817]
- 12.85 We
recommended that a Family Court Rules Committee should be established for the
purpose of developing new procedural rules
for relationship property matters to
be included as a sub-part of the Family Court Rules 2002 and issuing guidance on
the rules as
required. We made several other recommendations,
including:817F[818]
(a) the new procedural rules should include case management procedures tailored
to the needs of relationship property proceedings;
(b) the Family Court should have broad powers to appoint a person to make an
inquiry into any matter that would assist the Court
to deal effectively with the
matters before it; and
(c) the Government should collect data on the progress and resolution of
relationship property proceedings in the Family Court in
order to monitor
whether the Family Court is adequately resourced to deal appropriately with
relationship property proceedings.
Issues
- 12.86 In
our early engagement, several lawyers raised general concerns about delays in
the Family Court, but we did not receive concerns
specific to the claims in
question, nor did we hear that tactics are used to delay proceedings. It was
suggested by some that delay
may be useful in some estate disputes as it allows
the deceased’s family and friends time to grieve and heightened emotions
to settle.
- 12.87 However, a
year or more to resolve a dispute may be a long time for families. Delays can
have significant consequences for beneficiaries
who cannot access some or all of
the estate property during that time, especially those who had relied on the
deceased for support
during their lifetime.
- 12.88 We did not
make any specific proposals for reform in the Issues Paper in response to delays
in the Family Court in disposing
of claims against estates.
Results of consultation
- 12.89 Several
submitters, including NZLS, ADLS and Jan McCartney QC, commented on the delays
experienced in the Family Court.
- 12.90 ADLS
submitted that the delays were mostly attributable to resource constraints and a
lack of institutional knowledge by court
staff because of high staff turnover.
ADLS also submitted that delays can be beneficial by allowing the parties time
to grieve and
to force grieving parties to quickly resolve the dispute would not
achieve justice.
- 12.91 Submitters
expressed different views about whether new procedural rules should be developed
specific to claims under the new
Act. NZLS supported this in principle, noting
that any Rules Committee established should have its own terms of reference in
respect
of its role and what rules might be needed for a new Act. While agreeing
that procedural changes were needed to improve Family Court
processes, McCartney
did not agree that a Family Court Rules Committee should be established and
instead said the High Court Rules
Committee should control the Family Court
Rules. ADLS submitted that new procedural rules would not be desirable as the
delays are
related to inadequate staffing and resourcing of registries and an
absence of judge time. ADLS also submitted that delays are permitted
to occur
because of a reluctance of the judiciary to make cost awards against parties who
do not comply with directions. In ADLS’s
view, there should be a rule that
all estate cases proceed to a judicial settlement conference (JSC) before a
hearing date is allocated
and that no JSC can be allocated until the
estate’s assets and liabilities have been ascertained and the value of
each asset
and liability is known. ADLS submitted that personal representatives
should hold responsibility for ascertaining estates’ assets
and
liabilities and any party that has a different view of the values should provide
independent documentation establishing this
view at least seven days prior to
the JSC.
- 12.92 McCartney
also said that succession law is the perfect area to benefit from inquisitorial
decision-making, and this should be
a reform considered by the
Commission.
Conclusions
RECOMMENDATION
R103
Any Rules Committee established, as recommended by the Commission in the PRA
review in R102, should consider whether to develop rules
in respect of claims
under the new Act.
- 12.93 We remain
of the view that there are no significant issues specific to estate disputes
under the FPA, TPA or PRA that are attributable
to delays in the Family Court.
We understand that the Ministry of Justice is to coordinate a review and rewrite
of the Family Court
Rules
2002.818F[819] However, any Rules
Committee established, as recommended in the PRA review, should consider whether
to develop rules in respect of
claims under the new
Act.819F[820]
- 12.94 We do not
recommend a separate inquisitorial dispute resolution process for claims under
the new Act. Parties to an estate dispute
already have mediation and other
alternative dispute resolution processes available to them, along with the
semi-inquisitorial nature
of the Family Court.
TIKANGA MāORI AND DISPUTE RESOLUTION IN COURT
- 12.95 In
Chapter 11, we discuss the jurisdiction of the Family Court, the High Court and
te Kooti Whenua Māori | Māori Land
Court (the Māori Land Court).
- 12.96 For many
Māori, the Māori Land Court is a more attractive forum for resolving
disputes than the general courts. The
filing fees are much lower than those of
the High Court, and the expertise of both judges and staff of the Māori
Land Court
in tikanga and te reo Māori can make the Court a supportive and
positive place to go for dispute
resolution.820F[821] The Court is
required to conduct proceedings as will best avoid unnecessary formality and may
also apply rules of marae kawa as the
judge thinks appropriate and make rulings
on the use of te reo Māori during a
hearing.821F[822] There are
additional powers allowing the Court to take a flexible approach to obtaining
and receiving evidence as may assist the
Court to deal effectively with the
matters before it.822F[823] The
Court may appoint counsel to assist the Court or represent a person or class of
people.823F[824]
- 12.97 Māori
may, however, choose to resolve a succession dispute in the Family Court and the
High Court.
Issues
- 12.98 Concerns
have long been expressed about Māori experience with the courts and justice
system and the need for the justice
system to better take account of te ao
Māori.824F[825] The
Independent Panel examining the 2014 family justice reforms reported in 2019
that the family justice system is largely monocultural
and does not operate in a
way that recognises tikanga Māori or Māori views on
whānau.825F[826]
Recent steps to incorporate tikanga into the administration
of justice by the courts
- 12.99 Some
steps have been taken in recent decades to incorporate tikanga into contemporary
dispute resolution processes, including
in the administration of justice by the
courts.826F[827] Te Kura
Kaiwhakawā | Institute of Judicial Studies (the Institute of Judicial
Studies) provides education programmes and resources
to the judiciary, including
te reo and tikanga
wānanga.827F[828]
- 12.100 Recent
recommendations have been made for reform in relation to the Family Court. The
Independent Panel examining the 2014
family justice reforms recommended the
development of a joined-up family justice service to be called Te Korowai
Ture-ā-Whānau.828F[829]
The Panel recommended that the Ministry of Justice work with iwi and other
Māori, the Family Court and other professionals to
develop, resource and
implement a strategic framework to improve family justice services for
Māori.829F[830] The Panel
also observed that the emphasis on relationships in Māori culture contrasts
with family justice services, which prioritise
individual rights of
parties.830F[831] The Panel made
several recommendations directed to increasing the number of Māori Family
Court judges and, pending that, to
appoint some Māori Land Court judges to
sit in the Family Court, require Family Court judges to observe proceedings in
the Māori
Land Court and involve Family Court judges in the tikanga
Māori programme delivered by the Institute of Judicial
Studies.831F[832]
- 12.101 Courts
may access expertise on matters of fact such as tikanga in various ways. Perhaps
most commonly, the parties to a case
will each provide evidence from an expert.
The court may require the experts to conference and prepare a joint witness
statement
identifying the matters on which they agree and
disagree.832F[833] In Ellis v
R,833F[834] counsel agreed on
a process involving a wānanga of tikanga experts who met with each other
and with all counsel and produced
an agreed statement of tikanga. However, such
a process is expensive and uncommon.
- 12.102 The
appointment of a court expert or pūkenga is another way to assist the
court.834F[835] The Māori
Appellate Court may also provide an opinion on a question of tikanga in an
appropriate
case.835F[836]
Recommendations in the PRA review
- 12.103 In
the PRA review, we made several recommendations about the resolution of
relationship property matters that involve questions
of tikanga
Māori:836F[837]
(a) The Family Court should be able to appoint a person to make an inquiry into
matters of tikanga Māori and report to the Court.
(b) Family Court judges should receive education on tikanga Māori.
(c) The Government should give further consideration to warranting Māori
Land Court judges to sit alongside judges in the Family
Court where there is a
difficult matter of tikanga Māori at issue.
Results of consultation
- 12.104 All
submitters who responded to these matters discussed in the Issues Paper agreed
it was important to make the general courts
more accessible and attractive for
Māori. This included Te Hunga Rōia Māori o Aotearoa (THRMOA),
Ngā Rangahautira,
Public Trust, NZLS, ADLS, Community Law, Professor
Jacinta Ruru, Chapman Tripp and Te Kani Williams.
- 12.105 Several
submitters noted there was a lack of Māori judges in the general courts and
questioned the cultural competency
of the judiciary to make decisions as to
tikanga.
- 12.106 THRMOA
submitted that upskilling non-Māori judges and staff in the general courts
regarding knowledge and understanding
of tikanga and ensuring more well-trained
Māori become general court judges is required to address this gap. This was
endorsed
by Ngā Rangahautira and Chapman Tripp. THRMOA acknowledged that,
in the interim, other approaches such as having a mechanism
for a Māori
Land Court judge to sit on the High Court bench could be useful when questions
of tikanga arise.
- 12.107 NZLS
submitted that te Tiriti should be included in all family law reform, and from
that, it would follow that key concepts
such as tikanga must be considered. NZLS
cited the recent report into whānau experiences of care and protection in
the Family
Court in which the authors state that one option for achieving
transformational change is to change the behaviour of the judiciary
and
professionals working in the justice system – an option that does not
require legislative
change:837F[838]
- Every court
date is an opportunity to engage with whānau, hapu and iwi to support
change. Whānau, hapu and iwi must be
respected at all points of engagement,
and culturally appropriate models of engagement must be understood and enacted
by the judiciary.
It must be agreed that the attainment of a sound knowledge of
tikanga and te reo Māori is non-negotiable for professionals working
in the
Family Court. Furthermore, respecting mana, whakapapa and whanaungatanga,
together with acts of kindness and inclusion towards
whānau, are behaviours
that should be a common standard for all that work in the Family
Court.
- 12.108 Although
no specific question was asked on the consultation website, one submitter
suggested extending the use of cultural
impact assessment
reports838F[839] into succession
matters, with the idea that as proficiency in tikanga improved, these could be
used less and less. The submitter
suggested other alternatives including
tikanga-ā-rohe assessors, specialist tikanga courts or specialist tikanga
advisers appointed
to every court.
Conclusions
RECOMMENDATIONS
R104
Education on tikanga Māori, including on tikanga Māori specific to
whānau, should be an important aspect of education
for Family Court and
High Court judges who are not already knowledgeable in these areas.
R105
The courts should be able to appoint a person to inquire into such matters
the court considers may assist it to deal effectively with
the matters before
it, including matters of tikanga Māori, and this power should be specified
in the new Act.
- 12.109 Ensuring
diversity amongst the judiciary and the judiciary’s appreciation of te ao
Māori is important for all courts.
The Chief Justice, Dame Helen
Winkelmann, has publicly expressed her focus on diversity in judicial
appointment, with the “ideal
... that each judge has the required
knowledge to judge in a diverse
society”.839F[840] Over
time, greater diversity in judicial appointment will make a difference, but as
the Chief Justice observes, judicial education
is
critical.840F[841] It remains the
case for many (although of course not all) judges that they have insufficient
understanding of te ao Māori. For
this reason, we are supportive of the
education that the Institute of Judicial Studies is delivering to the judiciary
on te reo Māori
and
tikanga.841F[842] We recommend
that this education includes tikanga Māori specific to whānau. This
will better equip judges without this
expertise with the skills and knowledge to
determine circumstances where an inquiry into matters of tikanga Māori is
warranted
and to recognise and apply the principles of tikanga Māori more
generally through the adjudication
process.842F[843]
- 12.110 Consistent
with the recommendation in the PRA review, we recommend that a provision should
be incorporated into the new Act
enabling the court to appoint a person to make
an inquiry into and report on matters of tikanga Māori relevant to any
application
under the new Act. We do not see this provision as replacing the
practice of parties bringing their own expert evidence, nor do we
consider that
it should be mandatory for the court to make such inquiries. Although the
existing powers under the court rules enable
a court to appoint its own expert,
inclusion in the statute of this specific provision would give prominence to
this power.843F[844]
- 12.111 While we
see this power as being a significant tool for inquiries into matters of
tikanga, the courts should have the power
to appoint a person to inquire into
any matters that the court considers may assist it to deal effectively with the
matters before
it. This may, for example, include matters of valuation relevant
to a relationship property division. Consistent with the Commission’s
recommendations in the PRA review, the provision and related court rules should
clarify the powers of a person appointed to carry
out the
inquiry.844F[845]
- 12.112 We do not
recommend changes in respect of who pays the cost of the inquiry. The court
should retain discretion to direct either
or both of the parties to make such
payments into the court as it considers appropriate, taking into account the
reasons for the
inquiry and the circumstances of the
case.845F[846]
CHAPTER 13
Resolving disputes out of court
IN THIS CHAPTER,
WE CONSIDER:
- ways in which
parties can resolve a dispute without a court hearing;
- the law that
applies to resolving disputes out of court; and
- tikanga
Māori and dispute resolution out of court.
CURRENT LAW
- 13.1 A
significant proportion of claims against estates are resolved out of court.
There are good reasons to promote the resolution
of matters outside of court. It
is generally quicker and less expensive. It can result in better outcomes for
families because resolution
processes can focus on reaching agreement rather
than adversarial court proceedings.
- 13.2 The most
common ways of resolving disputed claims against estates out of court are:
(a) party or lawyer-led negotiation;
(b) mediation;
(c) arbitration; and
(d) judicial settlement conferences.
- 13.3 We
understand that resolutions reached by negotiation or mediation are often
concluded by the parties entering a deed of family
arrangement. In judicial
settlement conferences, the presiding judge may make consent orders confirming
the resolution reached.846F[847] A
consent order made at a settlement conference has the same effect as if it were
made with the consent of the parties in proceedings
in a
court.847F[848] Arbitrations are
concluded by the arbitrator’s decision. However, the parties must first
have entered an arbitration agreement
through which they agree to be bound by
the decision.
- 13.4 The Trusts
Act 2019 allows for alternative dispute resolution
procedures.848F[849] The Act
provides that the trustees or the court may refer a matter to an “ADR
process”, even if there is no provision
in the terms of the trust that
would allow for an alternative dispute resolution
process.849F[850] The matter may
include legal proceedings or a dispute that may give rise to legal
proceedings.850F[851]
- 13.5 If a matter
is “internal”, meaning it is a matter to which the only parties are
the trustees or beneficiaries, the
matter can be referred to ADR even if there
are beneficiaries who are unascertained or are deemed by law to lack capacity.
The court
must appoint a representative who must act in the best interests of
those beneficiaries.851F[852] The
representative may agree to an ADR settlement or agree to be bound by an
arbitration agreement and any arbitral award under that
agreement, on behalf of
those beneficiaries.852F[853]
Except in relation to arbitral awards, the court must approve an ADR settlement
in order for it to take
effect.853F[854]
- 13.6 Part 3A of
Te Ture Whenua Maori Act 1993 (TTWMA) provides for a statutory mediation process
to assist parties to a dispute to
quickly and effectively resolve any disputed
issues “between themselves; and in accordance with the law; and as far as
possible,
in accordance with the relevant tikanga of the whanau or hapu with
whom they are affiliated, for both the process and the substance
of the
resolution.”854F[855] A
judge hearing the proceedings may refer any issue arising from the matter to a
mediator at the judge’s initiative or at the
request of any
party.855F[856] If there are no
proceedings, any party to a dispute may apply to the Registrar to have the issue
referred to a mediator.856F[857]
The process is flexible, with the mediator able to follow any procedures the
mediator thinks appropriate to promptly and effectively
resolve the issues and
receive any information they think fit, whether or not it would be admissible in
court proceedings.857F[858]
RECOMMENDATIONS IN THE PRA REVIEW
- 13.7 In
the PRA review, we recommended measures to support out-of-court resolution. We
said parties should have adequate information
about the property sharing regime
and options for resolving relationship property matters and have access to
affordable legal advice.858F[859]
Such an approach would promote the resolution of PRA matters as inexpensively,
speedily and simply as is consistent with justice.
We recommended too that
voluntary out-of-court dispute resolution for relationship property matters
should be promoted
by:859F[860]
(a) including in the recommended new Relationship Property Act a statutory
endorsement of voluntary out-of-court dispute resolution
to resolve relationship
property matters;
(b) introducing new pre-action procedures in the Family Court Rules 2002 that
will provide a clear process for partners to follow
when attempting to resolve
relationship property matters out of court; and
(c) requiring applicants to acknowledge in court application forms that they
have received information about the pre-action procedures
and the availability
of dispute resolution services.
NGā TIKANGA
- 13.8 Tikanga
Māori promotes wellbeing and balance between all aspects of the human,
natural and spiritual
worlds.860F[861] Māori
dispute resolution is primarily concerned with maintaining a state of wellbeing
and balance.861F[862]
- 13.9 The
application of tikanga to social relationships leads to conflict management
processes that differ from prevalent Western
ways of viewing and solving
conflict.862F[863] However,
Māori decision-making processes are not easily reduced into an exhaustive
set of detailed rules.863F[864]
Māori decision-making is guided by tikanga both in terms of process and the
final decision. The tikanga will depend on the nature
of the issues at stake and
the relationships involved.
- 13.10 The
tikanga that apply to Māori dispute resolution are based on mana and tapu.
These dictate the cause and consequences
of disputes within te ao
Māori.864F[865] Utu is the
primary mechanism by which breaches of mana or tapu are rectified. Resolution
might be achieved through kōrero and
hui, the perpetrator assuming
whakamā (personal accountability) for the action or omission, rāhui
(prohibition), and many
other methods
besides.865F[866] We also discuss
in Chapter 6 the take-utu-ea framework for assessing breaches of tikanga.
- 13.11 Suitable
resolution methods are decided and acted upon according to various factors,
including the relationships involved and
the tikanga that were
transgressed. 866F[867]
The dispute resolution process is fluid and might incorporate several methods
and principles in order to reach a
solution.867F[868] This might be
contrasted with Western methods where, for example, the parties may
contractually bind themselves to a particular process
before a dispute has even
arisen.868F[869]
- 13.12 The
importance of rangatira (chiefs or leaders) for the resolution of disputes has
been widely discussed.869F[870]
Rangatira are widely regarded as carrying the mana of their people and are
expected to demonstrate this through actions and words
that strengthen the
cohesiveness of the group. Three principles are employed to achieve this: aroha,
the emotional response stirred
by empathy and kindness; atawhai, the obligation
to serve others and protect their wellbeing; and manaaki, the ability to look
after
those under one’s
care.870F[871] Associate Professor
Khylee Quince observes that a traditional dispute process might involve
rangatira leading discussions, exploring
options and leading their people to
accept one solution over another in the event that consensus is not achieved by
mediation.871F[872] Kuia and
kaumātua also play a significant role in addressing transgressions and
restoring relationships.872F[873]
The ultimate measure of success for Māori dispute resolution was the degree
of social harmony achieved within the group and
between the group and
others.873F[874]
- 13.13 The
arrival of the British settlers introduced to Aotearoa New Zealand institutions
that differentiated between the political
and the legal, while for Māori,
political and legal were subsumed under the rules and practices of mana and tapu
associated
with whakapapa and
whanaungatanga.874F[875] With the
emphasis on individual identity and diminution of group obligation, the role of
the rangatira and their authority as spokesperson
and guardian of group rights
diminished.875F[876]
- 13.14 Dr Carwyn
Jones has discussed three key differences between Māori and dominant
Western methods of addressing conflict:
relationships with other people,
attitudes towards time and attitudes towards the
environment.876F[877] Māori
tend to resolve disputes with reference to the maintenance of relationships
rather than with the application of universal
standards.877F[878] Collective
responsibility also means that the whole community is responsible for
maintaining and sustaining the values of that
community.878F[879] Māori
regard the length of time it takes to resolve a dispute as subordinate to the
overall goal of achieving balance in the
relationships involved. The close
connections with the past and the future mean that the focus is shifted away
from the present and
creates accountability for the current generation to both
the past and future
generations.879F[880] Because
tikanga that underpin Māori dispute resolution are all closely connected to
or derived from the natural world, parties
within a dispute are not isolated
actors from their
environment.880F[881]
- 13.15 Quince
favours a modern system of dispute resolution that incorporates fundamental
aspects of tikanga and establishes practical
processes that reflect the reality
of present-day
Māori.881F[882] In her view,
simply placing Māori in positions of power within the current systems is
inadequate; a truly representative system
would be predicated on tikanga as well
as Māori
people.882F[883]
- 13.16 The marae
remains at the centre of Māori life and continues to play a crucial role in
Māori dispute
resolution.883F[884] Dame Joan
Metge has explained
that:884F[885]
- Māori
collectively see the marae as the appropriate venue for debating issues of all
kinds, especially at family and community
level. Discussion is an integral part
of every gathering held on a marae, whether the community is meeting on its own
or entertaining
visitors, and whatever the publicly announced reason for coming
together. When Māori meet for discussion in other places, they
transform
them into the likeness of a marae by their use of space and application of marae
rules of debate.
- 13.17 However,
it is well recognised that the impacts of colonisation have left many Māori
without access to any marae as a forum
for dispute resolution and without access
to wider whānau and hapū as support
networks.885F[886]
ISSUES
How should tikanga Māori dispute resolution be
facilitated in the new Act?
- 13.18 There
is an important question about the best way to enable dispute resolution
processes based in tikanga Māori to be facilitated
in the new Act. As we
mention in Chapter 2 the Crown has an obligation under te Tiriti to exercise its
kāwanatanga (the right
to govern) responsibly and to facilitate the
exercise of tino rangatiratanga. This includes an obligation to facilitate the
resolution
of disputes according to tikanga Māori. Many of our
recommendations in this report are an attempt to weave tikanga into a state
law
framework to create better law for all. We have stressed, though, that
Māori who wish to resolve disputes by tikanga should
have the option to do
so. And the Crown, through its obligation to exercise kāwanatanga
responsibly, should facilitate this
expression of tino rangatiratanga.
The legality of some out-of-court settlements is
unclear
- 13.19 In
Chapter 10, we discuss the legality of agreements that purport to settle claims
against an estate. To summarise:
(a) A surviving partner may enter an agreement under Part 6 of the PRA with the
personal representative of the estate to resolve
relationship property
matters.886F[887]
(b) The courts have held that agreements through which parties purport to settle
Family Protection Act 1955 (FPA) claims are not
binding on grounds of public
policy.887F[888] It is unclear
whether the courts would continue to uphold this rule if the issue arose in
proceedings.888F[889] We
understand that parties will frequently settle claims by entering deeds of
family arrangement.
(c) It appears that parties can settle Law Reform (Testamentary Promises) Act
1949 (TPA) claims by agreement.
(d) The Arbitration Act 1996 provides generally that “any dispute”
can be arbitrated unless the arbitration agreement
is “contrary to public
policy” or “under any other law, such a dispute is not capable of
determination by
arbitration”.889F[890] We
have found no case that has considered a relationship property arbitration award
in Aotearoa New Zealand, although some commentators
have argued the agreement
would be binding if it conformed to the contracting out requirements under Part
6 of the
PRA.890F[891]
- 13.20 As a
result of this law, it is unclear whether parties are able to comprehensively
settle claims against an estate without going
to court.
Out-of-court resolution and parties who are unascertained,
minors or persons who are deemed by law to lack capacity
- 13.21 A
key question concerning out-of-court resolution is whether court involvement is
needed when the parties involved are unascertained
(such as beneficiaries yet to
be born), minors or persons who are deemed by law to lack capacity. These
parties may be beneficiaries
of the estate and/or claimants under the new Act.
If out-of-court resolution is to continue to be available under the new Act,
there
is a question as to how the interests of such parties should be protected.
As noted, the Trusts Act sets out procedures for ADR processes
concerning
internal matters when beneficiaries are involved who are unascertained, are
minors or are deemed by law to lack capacity.
Should pre-action procedures be contemplated for claims
against estates?
- 13.22 Potential
claimants sometimes experience difficulties obtaining the relevant information
needed to assess the viability of a
claim or to resolve that claim. Those who
are not already beneficiaries under the will often have the most difficulty. We
have heard
that accessing the will itself can be complicated, often only being
provided once probate is granted and the will becomes a public
record.
- 13.23 In the PRA
review, we recommended the introduction of new “pre-action
procedures” for relationship property
matters.891F[892] Parties would
need to comply with the pre-action procedures, unless there are good reasons not
to, to equip them for out-of-court
resolution and help avoid procedural issues
like inadequate disclosure of information. We recommended pre-action procedures
should
cover:
(a) giving notice to the other party of an intention to engage in out-of-court
dispute resolution to resolve a relationship property
dispute, which would
provide an opportunity to put the parties on notice of their disclosure
obligations and of other matters such
as the prohibition on disposing of family
chattels without the other partner’s consent;
(b) the process for disclosure; and
(c) participation in out-of-court dispute resolution, such as negotiation,
counselling, mediation, arbitration and other recognised
dispute resolution
methods.
- 13.24 Given our
recommendation in the PRA review to introduce pre-action procedures to
relationship property matters, a question arises
as to whether they should be
introduced for claims against an estate.
RESULTS OF CONSULTATION
Confirmation and endorsement of the ability of parties to
resolve disputes out of court
- 13.25 In
the Issues Paper, we proposed that the new Act should expressly confirm and
endorse the ability of parties to resolve disputes
out of court. We proposed
this to clarify that court involvement will not be required to vary the
distribution of an estate under
the terms of a will or intestacy provided that
the parties comply with any procedural requirements for entering settlement
agreements.
- 13.26 Most
submitters agreed with our proposals, including Public Trust, Te Kāhui Ture
o Aotearoa | New Zealand Law Society (NZLS),
the Family Law Committee of
Auckland District Law Society (ADLS), Morris Legal, Chapman Tripp, Jan McCartney
QC and Bill Patterson.
- 13.27 NZLS did
not think that a provision similar to section 143 of the Trusts Act was
necessary.892F[893] ADLS did not
think arbitration was an appropriate out-of-court resolution process for
determining family issues such as succession.
It also submitted that attendance
at a judicial settlement conference should be compulsory before a fixture is
allocated for a hearing.
It noted an extremely high number of cases settle at
judicial settlement conferences. Succeed Legal supported more statutory guidance
on resolving disputes out of court.
Tikanga relevant to dispute resolution
- 13.28 In
the Issues Paper, we asked whether we had accurately described the tikanga
relevant to dispute
resolution.893F[894] All
submitters who responded agreed with our description of the relevant tikanga.
This included Te Hunga Rōia Māori o Aotearoa
(THRMOA), Ngā
Rangahautira, Chapman Tripp and MinterEllisonRuddWatts. Tamati Cairns (in an
interview with Tai Ahu) said that
the larger history and background to a dispute
and the parties involved is always relevant to resolving disputes according to
tikanga.
Tikanga-based dispute resolution
- 13.29 In
the Issues Paper, we asked whether mediation or arbitration are useful ways to
resolve succession disputes for Māori
and whether tikanga-based mediation
should be included in state law as an option for Māori. We also asked how
else whānau
might resolve succession disputes.
- 13.30 THRMOA
supported the use of alternative dispute resolution. It considered all forms of
alternative dispute resolution should
be available for Māori to ensure
Māori can choose whether to utilise a tikanga-based process or not.
However, THRMOA considered
that, where taonga are concerned, the process should
be tikanga-based. THRMOA said that tikanga-based dispute resolution must have
an
independent pūkenga and someone who understands the relevant tikanga.
THRMOA and MinterEllisonRuddWatts noted that high-level,
outcome-focused dispute
resolution processes are preferable over prescriptive processes as they allow
the parties to determine what
a tikanga process looks like for them. THRMOA gave
the new dispute resolution provisions in TTWMA as an example of a tikanga-based
mediation process that is outcome based, although noted the limited information
available to date about its
success.894F[895] Both Ngā
Rangahautira and Chapman Tripp supported THRMOA’s submission. Professor
Jacinta Ruru submitted that tikanga-based
mediation should be available to
Māori at any point in their interaction with the law.
- 13.31 Submitters
made various suggestions for appropriate ways to facilitate tikanga-based
resolution, including:
(a) the establishment of a Māori Issues Court or Māori dispute
resolution body with members who have a strong grasp of
tikanga and state
law;
(b) a system similar to that used in the Rangatahi Courts, where whānau can
get together to manage and facilitate disputes and
enhance the mana of those
attending; and
(c) a dispute resolution process similar to judicial settlement conferences for
whānau succession disputes but with a specific
tikanga foundation for
tangata whenua and supervised by mediators and/or experts that are well versed
in tikanga and te reo Māori.
- 13.32 We did not
specifically ask about tikanga-based dispute resolution on the consultation
website, but some website submitters
discussed tikanga-based dispute resolution
in response to other questions. One said that tikanga processes can be less
adversarial
than state law processes and encourage dialogue among parties. Some
noted that tikanga processes can vary between groups, and the
law should
accommodate these differences. Another submitter said that tikanga-based
processes are inclusive and consensus building,
with a focus on rebuilding
relationships. They said that tikanga is concerned with the maintenance of
balance within the bonds of
relationships and those relationships are mediated
through kanohi-ki-te-kanohi (face-to-face) negotiation, compromise and agreement
between whānau and hapū.
Out-of-court dispute resolution that involves parties who
are unascertained, minors or persons who are deemed by law to lack
capacity
- 13.33 In
the Issues Paper, we proposed that the new Act should prescribe a process for
out-of-court dispute resolution involving parties
who are unascertained (such as
beneficiaries yet to be born), minors or persons who are deemed by law to lack
capacity that is consistent
with the alternative dispute resolution provisions
in the Trusts Act. It would require a representative for parties who are
unascertained,
minors or persons who are deemed by law to lack capacity, who
would be able to agree to participate in an out-of-court resolution
process and
agree to any settlement reached.
- 13.34 We
proposed that the court should be required to approve any settlement that
involves unascertained parties, minors or persons
who are deemed by law to lack
capacity.
- 13.35 We
expressed a preliminary view that, for arbitration, the same process should
apply. However, court scrutiny of the arbitral
award should not be
required.
- 13.36 Most
submitters agreed with our proposals, including Public Trust, Succeed Legal,
Morris Legal and Patterson. NZLS submitted
that the new Act should clarify the
legality of out-of-court settlements and that a similar provision to section 144
of the Trusts
Act could be adopted in the new Act. Chapman Tripp did not see the
need for a court to approve a settlement that involved unascertained
parties,
minors or persons who lack capacity as the involvement of a representative is
sufficient protection. ADLS did not think
that an out-of-court resolution
process should have to consider unascertained parties as out-of-court dispute
resolution requires
certainty. ADLS also submitted that court approval of a
settlement should be required when one or more of the parties is a
self-represented
litigant, is a minor or does not have capacity to look after
their own affairs.
Pre-action procedures
- 13.37 In
the Issues Paper, we proposed that parties in disputes should be required to
follow pre-action procedures. The procedures
would cover:
(a) giving notice to other parties of an intention to engage in out-of-court
dispute resolution;
(b) the requirement to make arrangements for the representation of parties who
are unascertained, minors or persons deemed by law
to lack capacity;
(c) the process for disclosure of information, including initial disclosure
obligations; and
(d) information about participation in out-of-court dispute resolution, such as
negotiation, counselling, mediation, arbitration
and other recognised dispute
resolution services.
- 13.38 We
proposed that the procedures could be set by a Family Court Rules Committee or
the High Court Rules
Committee.895F[896]
- 13.39 Most
submitters agreed with our proposals, including Public Trust, Succeed Legal,
Morris Legal and Patterson. Chapman Tripp
submitted that pre-action procedures
can be beneficial, but with agreement, families should be able to opt out of
them where there
are no unascertained parties, minors or persons deemed by law
to lack capacity involved. NZLS did not support the imposition of an
obligation
upon the parties to follow pre-action
procedures.896F[897]
CONCLUSIONS
The new Act should endorse and facilitate out-of-court
dispute resolution and tikanga-based dispute resolution
RECOMMENDATION
R106
The new Act should expressly endorse out-of-court dispute resolution and
tikanga-based dispute resolution.
- 13.40 In Chapter
10, we recommend that the new Act and the Administration Act 1969 should contain
provisions stating that parties
can enter an agreement to settle any differences
arising between them under the new Act or the intestacy provisions in the
Administration
Act. The new Act should prescribe no procedural requirements for
those parties to observe when entering settlement agreements (except
for matters
involving any parties who are unascertained, minors or persons who are deemed by
law to lack capacity). However, a settlement
agreement could be set aside if it
would cause serious injustice, or where the agreement prejudiced the
entitlements or claims of
a third party who has not properly been included in
the settlement agreement.
- 13.41 In the
Issues Paper, we proposed that there should be a statutory endorsement of
out-of-court resolution within the new Act.
We recognised that out-of-court
resolution may be particularly beneficial for the types of family disputes that
would arise under
the new Act. A process that allows the parties to arrive at an
agreed settlement may be more helpful at diffusing family hostilities
than an
adversarial court process. Out-of-court resolution processes may also allow
other family matters to be addressed that may
not be strictly relevant to the
legal issues before the court. Most submitters expressly agreed with our
proposals. We therefore
recommend that the new Act contain a statutory
endorsement of out-of-court dispute
resolution.897F[898]
- 13.42 We
recommend that the new Act should separately endorse the availability of
tikanga-based dispute resolution. In our view, tikanga-based
processes should
not be defined by reference to the courts as an “out-of-court”
resolution process, nor as an “alternative”
form of dispute
resolution. A statutory endorsement of tikanga-based dispute resolution,
separate from a general endorsement, gives
mana to agreements reached through
these processes as well as going some way to facilitate tino rangatiratanga and
recognise tikanga
Māori as an equal source of rights and obligations to
state law. This would also expressly allow space for the development of
new
Māori models of dispute resolution.
- 13.43 We observe
that the mediation process set out in Part 3A of TTWMA is available for nearly
any matter over which te Kooti Whenua
Māori | Māori Land Court ( the
Māori Land Court) has jurisdiction, including FPA and TPA disputes for
which the Māori
Land Court currently has
jurisdiction.898F[899] If the
Government adopts our recommendation in Chapter 11 that the Māori Land
Court have jurisdiction for matters concerning
taonga, parties to a dispute
involving taonga would also have access to the mediation process in Part 3A. In
our view, this is appropriate.
- 13.44 There is a
broader question about the availability of the Part 3A mediation process to
claims more generally under the new Act.
Our recommendations about settlement
agreements in Chapter 10 mean that parties could engage in an out-of-court or
tikanga-based
dispute resolution process of their own accord, without court
involvement, and come to a resolution.
- 13.45 However,
we consider that the Crown has a positive obligation to facilitate the exercise
of tino rangatiratanga by Māori,
including through the facilitation of
tikanga-based dispute resolution to resolve disputes. It may be that a process
that is statutory,
flexible and relatively inexpensive like the Part 3A
mediation process, is one that might have broader application. For example,
disputes concerning the eligibility to succeed in an intestacy in connection
with a whāngai relationship may be an issue that
is well suited to such a
mediation process.
The new Act should prescribe a process for out-of-court
resolution involving parties who are unascertained, minors or persons deemed
by
law to lack capacity
RECOMMENDATIONS
R107
R108
R109
R110
The new Act should prescribe a process for out-of-court resolution involving
parties who are unascertained, minors or persons deemed
by law to lack capacity.
The court should appoint representatives for parties who are unascertained (such
as beneficiaries yet to
be born), minors or persons deemed by law to lack
capacity when:
- a
person makes a claim against an estate under the new Act that may affect the
interests of any parties who are unascertained, minors
or persons who are deemed
by law to lack capacity; or
- any
minor or person who is deemed by law to lack capacity wishes to bring a claim
under the new Act.
A representative for parties who are unascertained, minors or persons who are
deemed by law to lack capacity should be able to agree
to participate in an
out-of-court resolution process and agree to any settlement reached. The
representative should act in the best
interests of the parties they
represent.
The court should be required to approve any settlement that involves
unascertained parties, minors or persons deemed by law to lack
capacity. It
should also be able to vary or set aside any agreement that would cause serious
injustice.
The same process set out at R107–R108 for appointing representatives
should apply for arbitrations involving parties who are
unascertained, minors or
persons deemed by law to lack capacity. However, outcomes reached by arbitration
should not require approval
by the court.
- 13.46 Most
submitters agreed with our proposals in the Issues Paper regarding out-of-court
resolution involving parties who are unascertained,
minors or persons deemed by
law to lack capacity. We acknowledge the few submitters who argued the processes
would be unnecessary.
However, we think consistency with the processes for
out-of-court resolution involving parties who are unascertained, minors or
persons
who are deemed by law to lack capacity in the Trusts Act is important.
Given the interrelationship between trusts and estates, it
would be unhelpful if
a different process applied to disputes under the new Act.
- 13.47 When a
dispute involves parties who are unascertained (such as beneficiaries yet to be
born), minors or persons deemed by law
to lack capacity, we recommend that the
new Act should prescribe a process that is consistent with the alternative
dispute resolution
provisions of the Trusts
Act.899F[900] The process will
require the court to appoint representatives for those parties to look after
their best interests. The representative
would be able to agree on their behalf
to participate in an out-of-court resolution process and agree to any settlement
reached.
For the present time, the definitions relating to capacity under the
new Act for the purposes of out-of-court resolution should be
consistent with
the Trusts Act to align the process with the Trusts
Act.900F[901]
- 13.48 The
process of appointing representatives would apply when:
(a) a person makes a claim against an estate under the new Act that may affect
the interests of any parties who are unascertained,
minors or persons who are
deemed by law to lack capacity; or
(b) any minor or person who is deemed by law to lack capacity wishes to bring a
claim under the new
Act.901F[902]
- 13.49 As with
the Trusts Act, the new Act should provide the further safeguard of requiring a
court to approve the settlement reached
unless the settlement is an arbitral
award. Additionally, the agreement should be subject to the court’s power
to vary or set
aside any agreement that would cause serious injustice (as
recommended in Chapter 10).
- 13.50 We
recognise that the Trusts Act is still new legislation. It is yet to be seen how
its provisions governing dispute resolution
will work in practice. If Parliament
determines the Trust Act provisions require reform, it may be desirable for the
rules in the
new Act to be amended to align as closely as possible with any
changes.
The new Act should not prescribe pre-action procedural rules
for parties to follow
- 13.51 We
have concluded that the new Act should not prescribe pre-action procedural rules
for parties in disputes because:
(a) the associated costs may be too high, particularly for small estates;
(b) by introducing compulsory procedures for parties to follow, we risk giving
parties with frivolous or unmeritorious claims a procedural
tool to use to
prolong a dispute; and
(c) pre-action procedural rules are less appropriate for succession disputes
than relationship property disputes. When people separate,
the possibility of
uncooperative behaviour is higher than when one party has died and their
personal representatives stand in their
place.
- 13.52 In
deciding not to recommend pre-action procedural rules, we have balanced the
needs of potential claimants to have access to
information and representation in
the early stages of a dispute against the costs of providing these. We have
concluded that the
potential costs outweigh the potential benefits and that the
existing practices for resolving disputes out of court and the well-established
procedures for bringing a claim in court are
sufficient.
CHAPTER 14
Role of personal representatives
IN THIS
CHAPTER, WE CONSIDER:
- personal
representatives’ duties when claims are brought, or may be brought,
against an estate.
CURRENT LAW
- 14.1 When
a deceased person leaves a will, the person appointed under the will to carry
out the terms of the will is called an executor.
When a deceased person dies
intestate, a person who is granted letters of administration is called an
administrator. An administrator’s
role is to distribute the estate in
accordance with the intestacy regime in the Administration Act 1969. We use the
term “personal
representatives” to refer to both executors and
administrators.
Duty to give notice to potential claimants
- 14.2 Personal
representatives have a duty to be even-handed between all beneficiaries of the
estate. The courts have held that the
duty of even-handedness extends to
claimants against an estate where personal representatives are aware that they
wish to make a
claim.902F[903]
Personal representatives must not actively or dishonestly conceal relevant
material about the estate from potential claimants who
seek
information.903F[904]
- 14.3 Te
Kōti Pīra | Court of Appeal (the Court of Appeal) has confirmed there
is no general duty to advise all potential
claimants of the death of a deceased
nor a general duty to advertise for
claimants.904F[905] The Court left
open the question of whether a duty of even-handedness and a duty to notify
potential claimants should extend to the
claims of which the executor ought to
be aware. However, in B v T, te Kōti Matua | High Court (the
High Court) held that the personal representatives ought to have given notice to
the deceased’s estranged
daughter.905F[906] The Court
reasoned it should have been “abundantly plain” that the daughter
would have been entitled to claim.
The role of personal representatives in court
proceedings
- 14.4 Personal
representatives will be the named defendants in Family Protection Act 1955
(FPA), Law Reform (Testamentary Promises)
Act 1949 (TPA) and Property
(Relationships) Act 1976 (PRA) proceedings, but the role they should take to
actively defend the claims
differs based on the nature of the claims and the
extent to which the claims are opposed by other parties.
- 14.5 In FPA
proceedings, the representatives can be described as “nominal
defendants” because they are generally expected
to take a neutral role in
proceedings, submitting to the judgment of the court without taking
sides.906F[907] Section 11A of the
FPA imposes a duty on personal representatives to place before the court all
relevant information about the estate
finances and the deceased’s reasons
for making dispositions.
- 14.6 In
contrast, personal representatives are expected to take an active role in
defending claims under the
TPA.907F[908] The beneficiaries
under the will may not be able to shed any light on the alleged claim or contest
the detail. The personal representatives’
role is therefore to ensure the
claim is properly tested and proved. However, where other parties wish to take
full part in the proceedings,
it is usual for personal representatives to take a
neutral role.908F[909]
- 14.7 The same
active role is expected of personal representatives in PRA
proceedings.909F[910]
- 14.8 In any of
these proceedings, the court may require personal representatives to represent
infants, unborn persons, absentees or
those not already
represented.910F[911]
Managing conflicts of interest
- 14.9 When
a claim is made against an estate, sometimes personal representatives will have
a conflict of interest. A personal representative
may
be:911F[912]
(a) a claimant against the
estate;912F[913]
(b) a beneficiary who intends to defend a claim as a beneficiary;
(c) a family member on one side of a dispute between family members; or
(d) the family solicitor who has previously acted for a number of family
members.
- 14.10 In these
instances, it may be appropriate for the personal representative to renounce or
retire from their role because of the
conflict.
- 14.11 Personal
representatives may, with the consent of the High Court and if not expressly
prohibited, appoint Public Trust as sole
executor or as a
co-executor.913F[914]
- 14.12 If the
conflicted individual does not step down as personal representative, the High
Court has power to remove them under section
21 of the Administration Act. The
Court of Appeal has held that “the conflict must actually prejudice the
beneficiaries’
welfare or undermine the executor’s ability to
perform his or her duties as
administrator.”914F[915]
ISSUES
Criticism of personal representatives’ duty to notify
potential claimants
- 14.13 In
the Issues Paper, we noted the case law that suggests personal representatives
have a duty to notify potential claimants
of whose claims they ought to be
aware. There has been criticism that this requires the personal representatives
to speculate as
to who may or may not wish to bring a claim, to judge the
strength of the claim and to advise the potential claimant
accordingly.915F[916] These are
matters critics say are inconsistent with personal representatives’
duties.
- 14.14 We have
heard through the course of this review that the current law is unsatisfactory.
Some individuals stressed to us that
a personal representative’s primary
duty is to administer the estate and distribute it according to the
deceased’s will
or the intestacy regime. On the other hand, others we have
heard from favoured imposing obligations on the personal representatives
to take
reasonable steps to notify potential claimants.
The role personal representatives should take in proceedings
may be unclear
- 14.15 The
role personal representatives should take in defending claims against an estate
is set out in case law. It is also highly
dependent on the nature of the claim
and how other parties choose to participate. In the Issues Paper, we described
how, during our
preliminary engagement, several people emphasised that the role
of personal representatives in proceedings should be clear and their
duties as
straightforward as possible.
Applications to replace personal representatives should be
made and dealt with efficiently
- 14.16 As
noted, there may be some cases where a personal representative has a conflict of
interest but continues to act as representative.
When a personal representative
must stand aside because of the conflict but they refuse to do so, it will be
necessary for affected
claimants or beneficiaries to apply to the High Court for
their removal. We emphasised in the Issues Paper that it is important for
removal applications to be made and dealt with as efficiently as possible.
RESULTS OF CONSULTATION
Issues
- 14.17 In
response to our question in the Issues Paper on the identification of the
issues, submitters generally agreed with our analysis.
Duty to give notice
- 14.18 In
the Issues Paper, we proposed that the new Act should require personal
representatives to give notice in a prescribed form
to the deceased’s
surviving partner and the deceased’s children who are eligible for a
family provision award. The notice
should include information about the option
of choosing relationship property rights, rights to claim family provision under
the
new Act, relevant time limits and obtaining independent legal advice.
- 14.19 Most
submitters who commented on this proposal were supportive. They included Public
Trust, the Family Law Committee of Auckland
District Law Society (ADLS), Chapman
Tripp and Succeed Legal. Submitters considered that a statutory requirement
would help clarify
the law regarding duties to notify, avoid claims being made
out of time and impose obligations on those personal representatives
who might
otherwise hold personal reasons for not notifying some potential claimants.
- 14.20 Several
submitters, including those that supported the proposal, emphasised the
difficulties personal representatives might
face when determining who would need
to receive notice and locating those individuals. Submitters made several
suggestions for how
the notice procedure could be made as easy and workable as
possible:
(a) It should be clear on who should receive notice. ADLS submitted, for
example, only the deceased’s biological children should
receive notice.
Personal representatives should not have to notify individuals who may be the
deceased’s “accepted
children”.916F[917]
(b) The notice should be in a set template with the prescribed information that
must be included.
(c) There should be a set timeframe within which personal representatives should
give notice.
(d) The notice requirement should be subject to a proviso that the personal
representatives’ duties are satisfied when they
have been unable to locate
individuals but have taken reasonable steps.
- 14.21 Some
submitters saw the practical obstacles as too great and did not support a duty
to notify. Morris Legal stressed that personal
representatives’ duties are
to administer estates in accordance with wills or intestacy provisions. They
added that family
members usually have no concerns about what they are to
receive from an estate, and it may be unpalatable if they are given notice
about
rights to claim. They said the wording of any notice needs careful
consideration. Bill Patterson suggested, as an alternative,
following orders
could be implemented to enable assets to be followed after final distribution of
an estate if a claimant with a
meritorious claim was unaware of the position.
- 14.22 Some
submitters repeated their views that there should be wider categories of
claimants eligible for family provision (see Chapter
5). They favoured requiring
personal representatives to give notice to all of these individuals.
The role of personal representatives in court
proceedings
- 14.23 We
proposed in the Issues Paper that the new Act should not prescribe the role
personal representatives are to take in proceedings,
except to provide a duty to
place before the court information concerning the estate and deceased’s
family in the personal
representative’s knowledge or possession. Most
submitters agreed with the proposal, some explaining how the proposal to provide
information would facilitate efficient case management. ADLS, on the other hand,
disagreed with the requirement to provide information.
It said the duty could be
onerous and therefore costly to the estate and could be contrary to the duty to
remain neutral.
Managing conflicts of interest
- 14.24 In
the Issues Paper, we expressed a preliminary view that no provision should be
made in the new Act for how personal representatives
are to manage conflicts of
interest, instead leaving the general law on personal representatives’
duties to apply. We added,
however, that the new Act should contain a power for
both the High Court and te Kōti Whānau | Family Court (the Family
Court) to remove or replace personal representatives where expedient.
- 14.25 Few
submitters addressed this proposal, but those that did were in favour.
Submitters were particularly supportive of the proposal
to include an avenue
within the new Act to apply to remove or replace personal representatives to
save a separate application under
the Administration
Act.
CONCLUSIONS
Personal representatives’ duty to notify potential
claimants should be clarified
RECOMMENDATIONS
R111
The new Act should require personal representatives to give notice within
three months of a grant of administration to:
- the
deceased’s surviving partner; and/or
- any
person who the personal representatives reasonably apprehend was in an intimate
relationship with the deceased at the time of
death.
The notice
should be in a prescribed form and contain information about:
- relationship
property entitlements;
- family
provision claims;
- relevant
time limits; and
- obtaining
independent legal advice.
R112
If the Government decides to implement Option One from R25 so that all
children and grandchildren of the deceased are eligible claimants
for family
provision, personal representatives should not be required to give notice to the
children and grandchildren.
R113
If the Government decides to implement Option Two from R25 so that the
deceased’s children who are under 25 or who are disabled
are eligible
claimants for family provision, personal representatives should be required to
give notice within three months of the
grant of administration to:
- the
guardian of any of the deceased’s children aged under 18; and
- children
aged 18 or older who may be eligible to claim family provision.
The
notice should be in a prescribed form. It should set out information about
family provision, relevant time limits and obtaining
independent legal
advice.
R114
Personal representatives’ duties to give notice should be satisfied
when they have taken reasonable steps to search for and
give notice to the
required recipients.
R115
Where the estate can be distributed without personal representatives being
appointed, there should be no notice requirements. However,
trustee companies
who administer estates having filed an election to administer the estate should
observe the notice requirements.
R116
Personal representatives should not be required to give notice to potential
testamentary promise claimants.
- 14.26 We
consider the law governing personal representatives’ duties to give notice
to potential claimants would benefit from
clarification in the new Act. This
would enable personal representatives to consult the new Act to determine the
extent of their
obligations.
Duty to give notice to surviving partners
- 14.27 We
recommend that the new Act should require personal representatives to give
notice within three months of the grant of administration
to:
(a) the deceased’s surviving partner; and/or
(b) any person who the personal representatives reasonably apprehend was in an
intimate relationship with the deceased at the time
of death.
- 14.28 The
purpose of this requirement is to ensure that any person who was in a qualifying
relationship with the deceased is made
aware of their rights under the new Act.
However, it is undesirable for personal representatives to need to make
difficult determinations
as to whether the deceased was in a qualifying
relationship. Instead, the notice requirements should apply to any person the
personal
representatives are reasonably aware was in an intimate relationship
with the deceased at the time of death, whether qualifying or
not.
- 14.29 The notice
should be in a prescribed form and contain information about:
(a) relationship property entitlements;
(b) family provision claims;
(c) criteria for qualifying relationships;
(d) relevant time limits; and
(e) obtaining independent legal advice.
- 14.30 The
advantage of this approach is that surviving partners will be made aware of the
law, which we understand is not always the
case currently. As noted by some
submitters, the notice procedure should reduce the likelihood of proceedings
being filed out of
time because the claimant was unaware of their
rights.917F[918]
- 14.31 We
recognise the difficulties in requiring personal representatives to determine
whether the deceased was in a relationship
at the time of their death, but we
consider the benefits of the approach outweigh this potential difficulty. We
anticipate that,
in most cases, it should be relatively straightforward to
determine whether the deceased was married, in a civil union or otherwise
in an
intimate relationship. Further, we recommend that the personal
representatives’ duties are satisfied when they have taken
reasonable
steps to search for and give notice to the deceased’s
partner.918F[919]
- 14.32 The
requirement to give notice should only apply to personal representatives when
there has been a grant of administration or
when a trustee company administers
an estate having filed an election to administer the
estate.919F[920] In circumstances
where the estate can be distributed without personal representatives being
appointed,920F[921] we recommend
that there should be no notice requirements.
Duty to give notice to children
- 14.33 In
Chapter 5, we present two options for reform the Government could consider in
respect of family provision awards to children
of the deceased. The first would
allow all children and grandchildren to claim. The second option would limit
eligibility to children
who are under 25 or children who have long-term physical
or mental disability. For both options, we recommend that a child of the
deceased should include “accepted children”, being children for whom
the deceased assumed in an enduring way the responsibilities
of a parent, and
whāngai.
- 14.34 If the
Government decides to implement Option One, we do not consider personal
representatives should be required to give notice
to any other potential
claimant under the new Act. We are mindful of concerns expressed by submitters
about the onus and associated
cost involved in locating all children and
grandchildren of the deceased and serving them with notice. We also recognise
the difficult
assessments personal representatives may be required to make. For
example, whether an individual qualifies as an accepted child of
the deceased
may not be readily apparent, particularly when the child may be an adult and the
parental role the deceased took was
more prominent in previous years.
- 14.35 If, on the
other hand, the Government decides to implement Option Two, the new Act should
require personal representatives to
give notice within three months from the
grant of administration to:
(a) the guardian of any of the deceased’s children aged under 18; and
(b) children aged 18 or older who may be eligible to claim family provision
under this option.
- 14.36 We
anticipate it will be easier for personal representatives to locate and serve
notice on these parties than adult children
and grandchildren. We also consider
it will be easier to determine whether a child is an accepted child or
whāngai because we
predict that the deceased would have been exercising
parental responsibilities for those children at, or close to, the time of death.
Further, to prevent the notice requirements from being too onerous, we recommend
that the new Act should provide that the personal
representatives’ duties
are satisfied when they have taken reasonable steps to search for and give
notice to children who are
eligible to claim family provision.
- 14.37 For some
estates, personal representatives will already be required to make
“reasonable inquiries” to determine
whether persons exist who are
eligible to claim an interest under a trust or estate by reason of the Status of
Children Act 1969.
Section 6A deems an executor, administrator or trustee to
have made reasonable inquiries when they have taken the steps set out in
section
6A(1). These steps will be highly relevant for determining whether a personal
representative has taken reasonable steps for
the purposes of the new Act.
However, they only relate to determining the existence of children eligible to
claim. We do not recommend
the new Act go so far as to deem specific actions as
constituting reasonable steps for the purposes of giving notice. What qualifies
as reasonable for purposes of the wider notice procedure under the new Act is
likely to depend far more on the circumstances of each
case.
- 14.38 The notice
should be a prescribed form. It should set out information about family
provision claims, relevant time limits and
obtaining independent legal
advice.
- 14.39 Where an
estate can be distributed without personal representatives being appointed,
there should be no requirement to give
notice to the deceased’s children,
although the notice requirement should apply when a trustee company administers
an estate
having filed an election to administer the estate. When a trustee
company is not involved and the estate does not require a formal
grant of
administration, it will be impractical and onerous to impose notice
requirements.
No notice requirements regarding testamentary promise
claims
- 14.40 We
do not recommend that personal representatives should be required to give notice
in a prescribed form to potential testamentary
promise claimants. As claimants
could be any individual and not just the deceased’s family members, it
could be difficult for
personal representatives to identify these
individuals.
The role personal representatives should take in proceedings
should not be prescribed in the new Act
RECOMMENDATION
R117
The new Act should not prescribe the role personal representatives are to
take in proceedings, except to provide a duty to place before
the court
information as recommended in R95.
- 14.41 We have
considered whether the new Act should set out the role personal representatives
should take in proceedings under the
legislation. In particular, we have
considered whether the Act should expressly provide that the personal
representatives are to
assume a neutral role.
- 14.42 Although
we see some merit in prescribing in the new Act the role personal
representatives should take, we do not favour this
approach for several reasons:
(a) As discussed in Chapters 10 and 13, we consider there are advantages in
encouraging parties to settle disputes without going
to court. If personal
representatives are required by the statute to take a neutral position, it may
be unclear when personal representatives
ought to actively engage in settlement
negotiations or let a court decide the matter.
(b) Personal representatives should be prepared to take a pragmatic approach
depending on the nature of the claim and what roles
other parties take in
defending a claim. For example, when other beneficiaries actively defend the
claim, we would expect personal
representatives to take a neutral and passive
role. If, on the other hand, a person brought a baseless testamentary promise
claim,
we would expect personal representatives to defend the proceeding. To
prescribe in the new Act what the approach should be in any
given case would be
cumbersome and impractical.
(c) In our review of comparable jurisdictions, we are not aware of any
jurisdiction that prescribes in its legislation the role personal
representatives are to take, nor are we aware of any recommendations from law
reform bodies in those jurisdictions to implement legislative
guidance.
- 14.43 We do,
however, recommend that the new Act require personal representatives to assist
the court by placing before the court
information as we discuss in Chapter 12.
That is, the information in the personal representative’s possession or
knowledge
concerning:921F[922]
(a) members of the deceased’s family and whānau;
(b) the financial affairs of the
estate;922F[923]
(c) persons who may be claimants under the Act; and
(d) the deceased’s reasons for making the dispositions made in the will or
for not making provision or further provision for
any person.
- 14.44 It should
be noted the obligation only relates to information in the personal
representatives’ possession or knowledge.
We expect this would not be an
undue burden in most cases.
The court should have powers under the new Act to remove and
replace personal representatives
RECOMMENDATION
R118
No provision should be made within the new Act for how personal
representatives are to manage conflicts of interest, instead the general
law on
personal representatives’ duties should continue to apply. The new Act
should, however, contain a power for both te
Kōti Matua | High Court
and te Kōti Whānau | Family Court to remove or replace personal
representatives where necessary or expedient.
- 14.45 Although
it appears conflicts of interest frequently arise when claims are made against
estates, we do not consider it necessary
for the new Act to provide guidance to
personal representatives for managing conflicts. We understand that, in most
cases personal
representatives and their legal counsel will know how to manage
the conflict consistently with their legal duties. Submitters generally
favoured
this approach.
- 14.46 We
recognise, however, that there will be cases where it is necessary or expedient
for the court to intervene to remove or replace
a personal representative. We
recommend that this power should be contained within the new Act so the matter
can be dealt with in
the same court and same proceedings without the need for a
separate application to the High Court under the Administration
Act.923F[924] If the proceedings
relating to the substantive claim are filed in the Family Court, we recommend
that the Family Court should have
jurisdiction to remove or replace personal
representatives involved in that matter.
CHAPTER 15
Cross-border matters
IN THIS
CHAPTER, WE CONSIDER:
- the conflict of
laws rules relating to succession, particularly entitlements to and claims
against estates, and intestate succession.
CURRENT LAW
- 15.1 In
2019, an estimated 272 million people worldwide lived in a country other than
their birth country. Between 500,000 and one
million New Zealanders are
estimated to live
overseas.924F[925] Prior to 2020,
Aotearoa New Zealand also had a high rate of net
migration.925F[926] With the
frequent movement of people and property between countries, it is inevitable
that Aotearoa New Zealand’s domestic
succession laws will come into
conflict with the domestic laws of another country.
- 15.2 With the
exception of section 5 of the Administration Act 1969 (confirming the broad
jurisdiction of te Kōti Matua | High
Court (the High Court) in relation to
administration and succession) and the choice of law rules in section 22 of the
Wills Act 2007,
the conflict of laws rules about claims against estates are
found in the common law.
- 15.3 In Aotearoa
New Zealand, matters of administration are governed by the law of the country in
which the assets are located and
a grant of administration is
made.926F[927] Where, for example,
probate of a will is granted by the High Court in Aotearoa New Zealand, the
personal representative will have
authority to collect the New Zealand assets
and pay any debts, according to New Zealand law. If, however, the deceased also
owned
property in Australia, a fresh grant of administration in Australia will
be required for the personal representative to administer
that property. A claim
under the Law Reform (Testamentary Promises) Act 1949 (TPA) has been categorised
by the courts as a matter
of
administration.927F[928] This
means that, if a grant of administration has been made in Aotearoa New Zealand,
a court is able to entertain a claim under the
TPA that may then be satisfied
from that New Zealand property. For administration purposes, it does not matter
where the deceased
was domiciled when they died.
- 15.4 Succession
is concerned with the distribution of the residue of the estate to those
entitled to inherit either under the will
or, if there is no will, under the
intestacy regime set out in the Administration Act. The Family Protection Act
1955 (FPA) has been
treated as a matter of succession because it is concerned
with the appropriate distribution of the net estate (the remainder of the
estate
after debts are paid). In general, matters of succession are governed by the
“scission” principle, which differentiates
between movable and
immovable property. Succession to movable property is determined by the law of
the deceased’s domicile
(lex domicilii)
whereas succession to immovable property is determined by the law of the
country where the property is situated (lex situs).
- 15.5 There are
also conflict of laws rules that apply to wills, including the creation and
revocation of a will, its validity and
its construction. Apart from section 22
of the Wills Act, these rules are found in the common law. These rules also rely
on the distinction
between movable and immovable property and frequently use
domicile as the relevant connecting factor.
- 15.6 There are
some fundamental differences between the succession regimes in common law
countries and in civil law countries, which
may add complexity when a
cross-border element arises. For instance, Aotearoa New Zealand and other common
law countries distinguish
between administration and succession, while civil law
countries tend not to make the same distinction. Civil law jurisdictions often
implement a system of forced heirship, whereas Aotearoa New Zealand allows for
greater testamentary
freedom.928F[929]
RECOMMENDATIONS IN THE PRA REVIEW
- 15.7 In
our review of the Property (Relationships) Act 1976 (PRA), we identified several
issues with the choice of law provisions
in that
Act.929F[930] Section 7 of the PRA
confirms that the Act applies to immovable property in Aotearoa New Zealand (not
to immovable property situated
overseas). In respect of movable property, it may
apply to property outside Aotearoa New Zealand if one of the partners is
domiciled
in Aotearoa New Zealand at the date of an application under the PRA,
at the date of any agreement between the partners relating to
the division of
their property or at the date of either partner’s death. The distinction
between movable and immovable property
prevents the resolution of property
disputes under a single legal regime. The domicile test for movable property is
problematic because
it enables the application of the PRA in circumstances where
Aotearoa New Zealand might not be the country most closely connected
to the
relationship. Section 7 also operates as a unilateral choice of law rule,
meaning that it only sets out when the PRA applies
and is silent on which
country’s laws apply when the PRA does not apply. This creates uncertainty
and risks leaving gaps in
the law if no other country’s law applies.
- 15.8 Section 7A
applies where the partners have made an agreement on what law should be applied
to their property before or at the
time their relationship began. However, it
fails to respect the autonomy of partners by not allowing for agreements to be
made during
the
relationship.930F[931] Section
7A(1) gives partners the right to agree that the PRA will apply to their
property, even if neither partner is domiciled in
Aotearoa New
Zealand.931F[932] The technical
requirements in section 7A(2) may mean that many agreements, particularly those
entered into outside Aotearoa New Zealand,
may not be recognised even where the
partners have organised their affairs in reliance on those
agreements.932F[933]
- 15.9 We
recommended the
following:933F[934]
(a) Section 7 of the PRA should be repealed, and in the absence of a valid
foreign law agreement, the law to be applied to property
disputes between
partners shall be the law of the country to which the relationship had its
closest connection.
(b) There should be a presumption that the country to which a relationship had
its closest connection is the country where the partners
last shared a common
residence unless either partner satisfies a court that the relationship had its
closest connection with another
country.
(c) All of the partners’ property, including movable and immovable
property situated outside Aotearoa New Zealand, should be
subject to the
recommended rules of classification and division.
(d) The court’s broad ancillary powers to give effect to a division of
relationship property should expressly include the power,
in relation to
property situated outside Aotearoa New Zealand, to make in personam orders
against a partner to transfer property.
(e) Section 7A of the PRA should be repealed, and new provisions made in
relation to foreign law agreements, including that the agreement
is valid under
the law of the country that is chosen under the agreement or under the law of
the country with which the relationship
had its closest connection. The court
should, however, retain discretion not to give effect to a valid agreement if it
would be contrary
to New Zealand public policy.
ISSUES
The
scission principle
- 15.10 The
scission principle distinguishes between movable and immovable property,
requiring succession to movable property to be
governed by the law of the
deceased’s domicile (lex domicilii) and succession to immovable property
to be governed by the law
of the country where the property is located (lex
situs). This has been heavily criticised by legal commentators, law reform
bodies
and the judiciary.934F[935]
It is seen to cause significant anomalies, particularly in intestate succession
and FPA claims.
- 15.11 In cases
where someone has died without a will, the lex situs rule for immovables might
mean that a partner is entitled to two
statutory
legacies,935F[936] potentially at
the expense of other family
members.936F[937]
- 15.12 In FPA
cases, the scission principle can frustrate the court’s ability to award
the level of provision it thinks fit or
to access the whole of the
estate.937F[938] For example, when
making an award under the FPA, a court may take account of the value of overseas
immovable property, but it cannot
make an award in respect of that
property.938F[939] A claim under
the FPA may be made in respect of immovable property situated in Aotearoa New
Zealand (even if the deceased is domiciled
outside Aotearoa New Zealand on
death)939F[940] and to movable
property situated anywhere only if the deceased was domiciled in Aotearoa New
Zealand at the time of
death.940F[941]
- 15.13 The
distinction is becoming increasingly artificial because of the ease with which a
person can convert movable property to
immovable or vice
versa941F[942] and because both
forms of property constitute value in the estate that should be available for
appropriate division.
Characterisation of TPA and FPA
claims
- 15.14 The second
issue relates to TPA claims being regarded as a matter of administration and FPA
claims being regarded as a matter
of
succession.942F[943] Neither
statute contains an express choice of law rule, and as a result, the courts have
had to determine how to characterise each
claim. These claims are often pleaded
in the same case, and the different categorisation can force artificial
constraints on the
court.943F[944]
Relationship property claims
- 15.15 The third
issue arises in relationship property claims. As noted above, the Commission has
recommended that, in the absence
of a valid foreign law agreement, the law to be
applied to property disputes between partners on separation should be the law of
the country to which the relationship had its closest connection (with a
rebuttable presumption that the country to which a relationship
had its closest
connection is the country where the partners last shared a common residence).
When considering the appropriate choice
of law rule for family provision and
testamentary promise claims, we need to keep this recommendation in mind.
RESULTS OF CONSULTATION
- 15.16 We
received 14 submissions in response to the cross-border chapter of the Issues
Paper.
Issues
- 15.17 Many
submitters, including Te Kāhui Ture o Aotearoa | New Zealand Law Society
(NZLS), the Family Law Committee of Auckland
District Law Society (ADLS),
MinterEllisonRuddWatts and Jan McCartney QC, said they agreed with the issues
identified by the Commission
in respect of cross-border matters. NZLS submitted
that cross-border issues are significant, particularly as between Australia and
Aotearoa New Zealand, and with the increase in migration to Aotearoa New Zealand
and the ownership of assets in more than one jurisdiction.
- 15.18 Two
submitters, Public Trust and Bill Patterson, questioned whether the problems
were ones commonly experienced in practice.
Public Trust said that it does not
regularly deal with estates that have cross-border issues and although the
Commission’s
reform suggestions should in theory simplify matters, there
are unknown risks in the practical application of a new approach.
- 15.19 In their
joint submission, Dr Maria Hook and Jack Wass submitted that an additional issue
that should be considered is the extent
to which the proposed choice of law
rules should be subject to overriding mandatory rules. Hook and Wass said that
it would be preferable
for any overriding statutory rules to be expressly
identified and that this might include the existing regime relating to whenua
Māori in Te Ture Whenua Maori Act 1993 (TTWMA) or proposed provisions that
exempt taonga from the general law of succession.
Choice of law
rules based on a personal connecting factor
- 15.20 Most
submitters agreed that the scission principle, which differentiates the choice
of law for movable and immovable property,
should be abolished in respect of
succession matters for the reasons described above.
- 15.21 One
submitter, TGT Legal, agreed that the scission principle can lead to
difficulties but disagreed with the proposal to remove
its application in
succession. TGT Legal submitted that the principle is consistent with the proper
and efficient administration
of the transfer of property, which is currently a
matter of domestic law. Having a single jurisdiction deal with all matters of
succession,
TGT Legal said, would not be desirable owing mainly to the practical
difficulties of dealing with foreign land and with enforcing
New Zealand court
orders overseas.
- 15.22 In place
of the scission principle, we proposed in the Issues Paper that the connecting
factor would be the deceased’s
last habitual residence, drawing on the
definition in the European Union (EU) Succession
Regulation.944F[945] We proposed
that habitual residence would have the objective of identifying the country to
which the deceased had the closest and
most stable connection. Submitters’
views varied about what the appropriate personal connecting factor should
be.
- 15.23 Some
submitters raised concerns that the holistic interpretation of habitual
residence might be difficult to apply in practice.
For example,
MinterEllisonRuddWatts submitted that the need to establish habitual residence
by way of an “overall assessment
of the specific circumstances of the
case” imposes a significant evidentiary burden on the person asserting it
and may lead
to significant delay and expense.
- 15.24 TGT Legal
preferred retaining the concept of domicile because it is a long-standing
concept developed over centuries of common
law jurisprudence. In TGT
Legal’s view, replacing domicile with habitual residence would not be
helpful without a substantive
reform to private international law. Until then,
TGT Legal submitted that it would be preferable to reform the outdated
provisions
in the Domicile Act 1976 and also to apply domicile to all
relationship property disputes.
- 15.25 Several
submitters, including NZLS, ADLS and Chapman Tripp, agreed with the
Commission’s proposals in favour of habitual
residence. NZLS submitted
that habitual residence, with a definition that leads to a finding of a close
and stable connection, would
seem to be a more contemporary and universally
applicable connecting factor than domicile:
While domicile may have
resonated historically in New Zealand law, increasingly the concept of habitual
residence is being utilised
across jurisdictions. For civil law jurisdictions
domicile is not a familiar concept and even in the countries that utilise the
concept,
domicile can have a range of interpretation options.
- 15.26 In
NZLS’s view, it would be useful for the legislation to outline a range of
factors relevant to the inquiry as proposed
in the Issues Paper. NZLS said that
it may also be helpful to cross-reference the habitual residence jurisprudence
from child abduction
cases in New Zealand courts where factors such as a settled
intention and linking stability to “an appreciable period of time”
in the country have been discussed and applied. This comparison with the
analysis in child abduction cases was a specific concern
of another submitter,
Jeanne-Marie Bonnet.945F[946]
Bonnet agreed with the Commission’s proposed definition of habitual
residence but was concerned that the term itself would
be misinterpreted and
equated with ordinary residence because there was precedent for this in child
abduction cases in New
Zealand.946F[947] In
Bonnet’s view:
Despite the best attempts of the court in
restraining itself to a purely factual analysis, the development of legal
principles in
interpreting habitual residence has already started, and it
appears that New Zealand is stuck using the wrong principles ... there
remains
an unhelpful emphasis on intention at the “settled purposes” limb of
the enquiry.
- 15.27 Bonnet
submitted that the connecting factor used in the Commission’s PRA review,
the “closest and most real connection”,
would be a more appropriate
alternative.
- 15.28 In the
Issues Paper, we also proposed that courts should have some flexibility to
interpret or adapt the rules to harmonise
domestic and foreign law. We suggested
this might be achieved by incorporating a rule of adaptation in the legislation.
All submitters
who commented on this proposal, including Public Trust, NZLS,
ADLS and MinterEllisonRuddWatts, agreed with it.
- 15.29 Finally,
in the Issues Paper, we took the preliminary view that disputes over
relationship property following the death of a
partner should also be governed
by the law of the deceased’s last habitual residence to avoid fragmenting
the law governing
a deceased’s estate. This would differ from the choice
of law rule recommended by the Commission in the PRA review for determining
the
law applicable to relationship property disputes for relationships that end on
separation.947F[948] Hook and Wass
expressed their support for this proposal but submitted that the substantive
rules that govern a partner’s rights
may be found in the applicable
law’s succession regime or within the applicable law’s relationship
property regime, depending
on how the issue is classified in that jurisdiction.
Hook and Wass submitted that a benefit of this approach would be that the need
for adaptation will usually only arise in the case of foreign judgments or
proceedings.
Scope of the choice of law rules
- 15.30 In the
Issues Paper we proposed two alternative options about the scope of the issues
that would be determined by the new rules.
Neither option would preclude rules
of the lex situs continuing to apply to the administration of estates.
- 15.31 Under
Option One, the new Act would specify multilateral choice of law rules for
issues relating to intestate succession, material
and essential validity,
revocation of wills, relationship property claims and claims in the nature of
family provision and contribution.
- 15.32 Under
Option Two, all matters of succession would be governed by new choice of law
rules. These would be expressed in the proposed
new Act and in the Wills Act. We
proposed that the new rules would therefore cover successions with or without a
will, relationship
property claims on death and other claims against estates.
Option Two could therefore also include repealing the current choice of
law
rules for formal validity contained in section 22 of the Wills Act and replacing
this with choice of law rules based on the habitual
residence of the
deceased.
- 15.33 Two
submitters, TGT Legal and Morris Legal, did not support either option. For TGT
Legal, this was because both options presumed
the removal of the scission
principle and reliance on habitual residence, which they did not agree with.
Morris Legal were concerned
about the possible consequences of a broad
application of habitual residence. They expressed two concerns as examples.
First, that
the test of habitual residence could lead to New Zealand law
inadvertently applying to the distribution of estates of individuals
who, while
living in Aotearoa New Zealand, still consider their home to be an overseas
jurisdiction. Second, that an individual could
be habitually resident in
Aotearoa New Zealand while still domiciled in their home country, and this might
cause confusion as to
which law governs the distribution of their estate because
the different jurisdictions apply different tests.
- 15.34 The
remaining submitters, Public Trust, NZLS, ADLS, Chapman Tripp and
MinterEllisonRuddWatts, preferred for all matters of succession
to be governed
by new choice of law rules (Option Two). Their reasons included that it was
easier to understand and would streamline
the process, create consistency and
allow for all matters of succession to be dealt with by the law of one place.
Chapman Tripp queried
whether these proposals would continue to allow a
will-maker to make a will in one country to deal with the property situated
there
(particularly immovable property) and another in Aotearoa New Zealand to
deal with the property here and, if that was to be the case
whether a
partner’s relationship property claim could apply to the immovable
property outside Aotearoa New Zealand as well
as that
inside.948F[949]
- 15.35 Submitters
expressed different views about the choice of law rule that should apply to
capacity to make a will. For example,
Chapman Tripp agreed with the proposal
that the applicable law should be the law of the deceased’s habitual
residence at the
time of making the will, while MinterEllisonRuddWatts
considered that the capacity to make a will should be determined in the country
in which the will is made.
- 15.36 The only
two submitters who commented separately on the choice of law rule in respect of
capacity to take under the will, Chapman
Tripp and MinterEllisonRuddWatts,
endorsed the Commission’s proposal that this should be the law of the
deceased’s habitual
residence at the date of
death.949F[950]
Foreign
law agreements
- 15.37 In the
Issues Paper, we proposed that partners should be entitled to decide the
country’s law that should apply to some
or all of their property on death
provided that their agreement is in writing, signed by the partners and meets
the validity requirements
of the law of the nominated country or the law of the
country with which the relationship had its closest connection and giving effect
to the foreign law agreement would not be contrary to public
policy.950F[951] We said that
these agreements could extend to determining what country’s law should
apply to any potential claims that the
surviving partner might have against the
deceased partner’s estate.
- 15.38 Submitters
unanimously agreed with this
proposal.951F[952] However, two
submitters commented on the validity requirements. TGT Legal were concerned
about the possibility of circumstances arising
where a foreign law agreement
might be enforced in a New Zealand court when that agreement could not be
enforced in the jurisdiction
under whose law it was created. They said that,
although such agreements are relatively common and validly created under local
contract
law, enforceability on divorce or death can be an issue, or the
application of agreements can be restricted by forced heirship rules.
- 15.39 Morris
Legal noted the Commission’s recommendation in the PRA review that, if a
relationship had no connection to the
nominated country and Aotearoa New Zealand
is the country with which the relationship had its closest connection, a foreign
law agreement
must meet the legal requirements of a valid agreement under New
Zealand law. Morris Legal agreed with this approach in principle
but requested
that the Commission provide further guidance on the meaning of “no
connection” to the nominated country
and the point in time when that test
will be applied.
- 15.40 Hook and
Wass also agreed with the substance of this proposal but submitted that the
agreements should be called “choice
of law agreements” not
“foreign law agreements” to avoid any confusion that they only apply
to New Zealanders choosing
a law other than their own.
- 15.41 In the
Issues Paper, we also proposed that family provision claims for children and
contribution claims would not be able to
be the subject of a foreign law
agreement. The submitters that responded to this proposal
agreed.
Other matters
- 15.42 In the
Issues Paper, we proposed that the court should have broad powers to give effect
to relationship property, family provision
and contribution awards, which would
allow them to take account of property situated in another country and to make
in personam orders.
All submitters agreed with this proposal.
- 15.43 We also
proposed in the Issues Paper that any new legislative provisions should not
refer to the application of
renvoi.952F[953] This would allow
the courts to determine the application of renvoi in a particular case when
relevant. Most submissions we received
supported this
proposal.953F[954] NZLS said that
it was conscious that renvoi is a rarely used doctrine and there are strong
arguments advanced against its application,
which can involve applying the
conflict of laws rules of the foreign country in preference to our own. However,
NZLS was persuaded
by the comments of Hook and Wass that retaining renvoi as an
option may be beneficial and achieve a more just result in some cases,
particularly with respect to the issue of enforcement.
- 15.44 MinterEllisonRuddWatts
agreed that the new law should not affect the application of renvoi but
considered that the law should
refer to and codify New Zealand’s position
on renvoi.
- 15.45 Just one
submitter, MinterEllisonRuddWatts, commented on the matter of jurisdiction, to
express their agreement with our proposal
in the Issues Paper that the general
rules relating to jurisdiction do not require reform in respect of succession
matters.
- 15.46 Finally,
in the Issues Paper, we proposed that the new Act should confirm that the
Moçambique rule has no application in matters covered by that
legislation. Submitters who responded to this proposal were supportive,
including
Public Trust, NZLS, ADLS, Chapman Tripp, MinterEllisonRuddWatts and
TGT Legal.
CONCLUSIONS
- 15.47 In
the following section we set out our reform recommendations and the reasons for
those recommendations. At the end of this
chapter, there are several case
studies that illustrate how these recommendations might work.
RECOMMENDATIONS
R119
With the exceptions of succession to Māori land (under Te Ture Whenua
Maori Act 1993) and succession to taonga (discussed in
Chapter 3), all matters
of succession should be governed by the new choice of law rules, which should be
expressed in statute. The
multilateral choice of law rules should identify the
most appropriate system of law to govern the issue in question, whether that
is
New Zealand law or foreign law, with the exception of formal validity, which
would continue to be governed by section 22 of the
Wills Act 2007.
R120
The applicable law for determining matters of succession should be the law of
the deceased’s last habitual residence. This should
include successions
with or without a will, relationship property claims on death and other claims
against estates. Habitual residence
should be defined in legislation, drawing on
the definition in the European Union Succession Regulation, with the objective
of identifying
the country to which the deceased had the closest and most stable
connection.
R121
The construction or interpretation of a will should be governed by the law
intended by the will-maker. This should be presumed to
be the law of their
habitual residence unless there is a clear indication that the will-maker
intended a different law to be applied.
R122
The applicable law for determining capacity to make a will should be the law
of the deceased’s habitual residence at the time
of making the will,
whereas the applicable law for determining capacity to take under the will
should be the law of the deceased’s
habitual residence at the time of
death.
R123
A rule of adaptation should be available and prescribed in statute.
R124
A New Zealand court should have the power to refuse to apply a foreign rule
where doing so would be contrary to public policy.
R125
The Government should consider replacing the reference to
“domicile” with “habitual residence” in section
22 of
the Wills Act 2007.
Choice of law rules based on personal connecting factor
- 15.48 We
conclude that the scission principle should not apply to matters of succession.
Instead, we recommend that the choice of
law rule for succession should be based
on a personal connecting factor, with the benefit that succession to a
deceased’s estate
may be dealt with under a single legal
regime.954F[955]
- 15.49 We
recommend that this connecting factor should be the deceased’s last
habitual residence, drawing on the definition in
the EU Succession
Regulation.955F[956] The test of
habitual residence is intended to identify the country to which the deceased had
the closest and most stable connection.
This would be determined with reference
to an overall assessment of the specific circumstances of the case, including
the deceased’s
social, professional and economic ties to the country. The
determination would also include consideration of the underlying aim of
engaging
the most relevant law for that case to give effect to the interests of the
deceased, of people close to the deceased and
of creditors.
- 15.50 Relevant
criteria for evaluating the deceased’s ties to a country might include the
presence of the deceased’s family
members, the renting or purchase of a
house, schooling of children, fluency in the language, the existence of a
network of friends
and acquaintances, employment in a local company, attending
professional training or university courses and the opening of a bank
account.956F[957] Whether the
deceased intended to reside indefinitely in a country would not be an isolated
element to be considered,957F[958]
but intention would be demonstrated through the evidence of a deceased’s
social, professional and economic ties to the country
and in this sense would be
a relevant part of the
inquiry.958F[959] The passage of
time will play a significant role in determining habitual residence. For
example, the more time a person spent residing
in a country, the more likely it
is that they will be determined habitually resident in that
country.959F[960]
- 15.51 There was
some concern among submitters that an inquiry to determine habitual residence
would impose too heavy an evidential
burden for those involved in a dispute.
However, the deceased’s habitual residence will be easily identifiable in
most cases.
In circumstances where it is more complicated, we consider it
preferable that courts are able to engage in an evaluative inquiry
in order to
make a finding about the country with which the deceased had the closest and
most stable connection rather than to rely
on the legalistic concept of
domicile, which relies on intricate rules to determine both the domicile that
one inherits as a child
and the independent domicile one may subsequently
acquire.960F[961]
- 15.52 Our
intention is that determining habitual residence should be an inquiry based on a
wide range of possible factors, and courts
should not become too reliant on
establishing and applying legal
principles.961F[962] We continue
to believe that, in the long term, it will be preferable for Aotearoa New
Zealand to use the globally recognised connecting
factor of habitual residence
rather than to use the concept of domicile or a new phrase “closest
connection”.962F[963]
- 15.53 A minority
of submitters thought that changing the law might not be justified and that the
scission principle should continue
to apply to matters of succession.
Information is not available to allow us to quantify the extent of the problem
caused by applying
different choice of law rules to movable and immovable
property. However, the distinction between movable and immovable property
under
the scission principle prevents some claims against estates being resolved under
a single legal regime, which we consider undesirable
in a globalised world. The
costs associated with bringing claims in more than one jurisdiction may impede
access to justice in some
cases.
- 15.54 The
abolition of the scission principle would not prevent will-makers continuing to
make separate wills for property in different
jurisdictions. In practice, it
would likely be necessary to seek a grant of administration in the country in
which immovable property
is situated to deal with that property, although this
in itself would not stop the New Zealand court exercising jurisdiction over
all
the will-maker’s property for the purpose of determining rights on
succession.963F[964]
- 15.55 We
recommend that disputes over relationship property following the death of a
partner should also be governed by the law of
the deceased’s last habitual
residence to avoid fragmenting the law governing a deceased’s estate. This
would differ
from the choice of law rule recommended by the Commission in the
PRA review for determining the law applicable to relationship property
disputes
for relationships that end on
separation.964F[965]
- 15.56 It is
sensible that disputes between separating partners over their relationship
property are decided in accordance with the
law most closely connected to that
relationship, particularly given the relationship property is likely to be
situated in that country.
However, this may be more complicated on death as not
all countries have a relationship property regime like Aotearoa New
Zealand.965F[966] In other
jurisdictions, a surviving partner’s entitlement may be characterised as a
question of succession. If the same connecting
factor applies in both cases,
courts will not need to determine whether the issue should be characterised as a
question of relationship
property or as a question of succession in order to
decide which jurisdiction’s law should govern the issue. Our intention
is
that, once the court has identified the law governing the partner’s claim
on death, the court may apply the applicable law’s
succession regime or
relationship property regime, depending on how the issue is treated under the
applicable law.966F[967]
- 15.57 We have
considered the alternative approach that disputes between partners over their
relationship property should be decided
in accordance with the law most closely
connected to that relationship, whether that relationship has ended on
separation or on the
death of a partner. There is merit to this approach,
particularly given the importance of relationship property entitlements in
Aotearoa
New Zealand’s domestic policy. For example, in circumstances
where Aotearoa New Zealand is the country most closely connected
to the
relationship, it might seem anomalous that a partner was entitled to a
relationship property division under New Zealand law
when the couple separated
but loses this entitlement where their relationship ended on the death of one
partner if the deceased partner
was not habitually resident in Aotearoa New
Zealand.
- 15.58 However,
there are several reasons why we do not prefer this alternative
approach:
(a) We expect it to be rare that, when a relationship ends on the death of one
partner, the country most closely connected to that
relationship would differ
from the deceased partner’s country of habitual residence. Ascertaining a
person’s habitual
residence involves an evaluation of social, professional
and economic ties to a country. It is reasonable to expect this inquiry
to
identify the same country most closely connected to the couple’s
relationship given that the couple will commonly have lived
and worked in that
country for much of their relationship, and their family home or other
relationship property will be situated
there. It is also rare for a surviving
partner to elect a division of relationship property. In most circumstances, a
surviving partner
will choose to take what was gifted to them in the
will.967F[968]
(b) When there is a difference, this would generally be obvious to the couple.
This is one of the benefits of preferring habitual
residence over domicile.
Because a new domicile can be obtained only with the requisite intention to
remain indefinitely in a country,
it could come as a surprise to a surviving
partner that the law of the country in which the couple had built a life for
many years
is not the deceased’s domicile. Such a surprise is much less
likely to occur using habitual residence as the connecting factor.
Further,
where one partner has significant connections to a different country, the couple
might choose to enter into a choice of
law agreement, which, as we discuss
below, might extend to an agreement about what should happen to the
couple’s relationship
property when one of them dies.
(c) Third, if the choice of law rule governing relationship property disputes on
death differed from the choice of law rule governing
succession matters, it is
conceivable that a surviving partner (or beneficiaries of the estate in some
circumstances) might use the
different choice of law rules to enable them to
obtain a windfall. For example, a surviving partner could potentially receive a
significant
share of their partner’s estate under the relationship
property law of one country plus a significant share of the estate under
the
intestacy regime in another country.
- 15.59 We
recommend that there should be an exception to this general rule in
circumstances where the partners have separated prior
to death and commenced
proceedings to divide their relationship property and then one partner dies.
Should this situation arise and
the deceased partner’s habitual residence
is a different country from the country most closely connected to the
relationship,
the relationship property proceedings should be allowed to
continue. The partners will have commenced the proceedings with reasonable
expectations about the law that applied to those proceedings, and those
expectations should not be undermined because one partner
dies prior to the
resolution of those
proceedings.968F[969]
- 15.60 We
recommend that courts should have some flexibility to interpret or adapt the
rules to harmonise domestic and foreign law.
For example, this might include the
ability to take into account the completion of a relationship property division
when determining
the estate and the respective shares of the
beneficiaries.969F[970] It may be
beneficial for a rule on adaptation to be set out in statute, such as that
suggested by Gerhard
Dannemann:970F[971]
- (1) In the
application and interpretation of both domestic and foreign law, courts must
seek to avoid a situation in which the combination
of rules from or decisions
taken in different jurisdictions produces an outcome which differs from a common
outcome for purely domestic,
but otherwise identical cases in the same
jurisdictions, unless an applicable rule intends such a different
treatment.
- (2) If such a
different outcome cannot be avoided by application and interpretation, courts
may modify or set aside otherwise applicable
rules if the outcome would
otherwise violate human rights, in particular rights to equal
treatment.
- 15.61 We also
recommend that a New Zealand court continues to have the power to refuse to
apply a foreign rule where doing so would
be contrary to public policy. The
concept of law being contrary to public policy is a well-established principle
of private international
law. The threshold for invoking the exception is
high.971F[972] Te Kōti
Pīra | Court of Appeal (the Court of Appeal) has stated that the policy
infringement:972F[973]
- ... must be of
a fundamental or universal value, not simply the result of a ranking within a
spectrum of relative values which are
recognised in one legal system but not the
other.
- 15.62 Internationally,
courts have used the public policy exception where competing values of choice of
law justify limiting the recognition
of foreign law, particularly where the case
had a close connection to the
forum.973F[974]
- 15.63 Submitters
who commented on the adaptation rule and the public policy exception unanimously
supported their use.
Scope of the choice of law rules
- 15.64 We
recommend that legislation should contain multilateral choice of law rules that
identify the most appropriate system of law
to govern the issue in question,
whether that is New Zealand law or foreign
law.974F[975]
- 15.65 With the
exceptions of succession to Māori land (under TTWMA) and the succession to
taonga (discussed in Chapter 3), all
matters of succession would be governed by
the new choice of law rules, which would be expressed in statute. The statutory
exclusion
of Māori land and taonga would mean that succession to these
taonga must always be determined by New Zealand law (which we mean
to include
tikanga), even in circumstances where the deceased was habitually resident in
another jurisdiction.
- 15.66 This
recommendation was endorsed by most submitters. It would have the benefit of
codifying the choice of law rules in succession,
removing the scission principle
and replacing it with a personal connecting factor and streamlining the process
for determining the
applicable law in succession-related matters. No submitter
preferred our alternative proposal that the choice of law rules be more
limited
in their scope as this proposal would continue to allow some succession matters
such as the capacity to make a will or take
under a will to be dealt with by the
current common law choice of law rules. The only other alternative would be to
leave the law
as it is and for the Government to contemplate a broader review of
conflict of laws in Aotearoa New Zealand.
- 15.67 The new
rules would therefore cover successions with or without a will, relationship
property claims on death and other claims
against
estates.975F[976]
- 15.68 For
example, the choice of law for determining an issue of material and essential
validity, and for whether a will has been
revoked would also be determined by
the law of the deceased’s habitual residence at death. The principal
function of the validity
rules is to determine whether there are any
restrictions on the will-maker’s freedom to dispose of their estate.
Awards under
the FPA involve invalidating dispositions under the will and are
therefore treated as specific applications of the general conflict
rules
governing material or essential
validity.976F[977] Forced heirship
rules are also treated as affecting the validity of a
will.977F[978] It may create
difficulties of characterisation if the validity of a will continues to be
governed by common law choice of law rules
while family provision and
testamentary promise claims are governed by the new statutory choice of law
rules. Additionally, it is
preferable that the question of whether a will has
been revoked is governed by the same law as that which determines whether a will
was validly made.
- 15.69 The
construction or interpretation of a will is currently governed by the law
intended by the will-maker. This is presumed to
be the law of their domicile
unless there is a clear indication that the will-maker intended a different law
to be applied. We do
not propose any change to the rule that the law applicable
to the interpretation of a will should be that intended by the will-maker.
Rather, we recommend that the presumption should be that this is the law of the
deceased’s habitual residence rather than their
domicile.
- 15.70 Another
potentially significant change would be the effect on the current unclear choice
of law rules around personal capacity
to make a will or take under a will.
Currently, personal capacity to make a will is governed by the scission
principle. Capacity
to make a will of immovable property appears to be governed
by the lex situs, while capacity to make a will of movable property is
governed
by the law of the will-maker’s domicile. Views differ about whether the
point in time to determine the applicable
law that decides capacity issues
should be the time of making the will or the time of
death.978F[979]
- 15.71 We
recommend that the applicable law for determining capacity to make a will should
be the law of the deceased’s habitual
residence at the time of making the
will and that capacity to take under the will should be determined by the law of
the deceased’s
habitual residence at the time of death.
- 15.72 The new
rules would not preclude rules of the lex situs continuing to apply to the
administration of estates. For example, if
a grant of administration is required
in the country where property is located, this would still be necessary. Most
(if not all)
countries have specific requirements for dealings with land that
would continue to need to be
met.979F[980]
- 15.73 We
recommend that the Government should retain the current choice of law rules for
formal validity contained in section 22 of
the Wills Act but consider replacing
the reference to domicile with habitual residence. That section incorporates a
validating choice
of law rule, which means that a will is treated as formally
valid as long as it complies with the formalities of any one of the relevant
legal systems.980F[981] Consistent
with the abolition of the scission principle, the Government should consider
extending the application of section 22 to
immovable property and providing that
a will of immovable property will be valid if it complies with the formal
validity requirements
of any of the laws specified in section 22 or the
requirements of the lex
situs.981F[982]
Choice
of law agreements between partners
RECOMMENDATIONS
R126
During their lifetime, partners should be entitled to agree that the law of a
nominated country should apply to some or all of their
property on death. These
agreements should be subject to the same validity requirements recommended in
R137 and R138 of the PRA review.
R127
The court should also retain a residual discretion to set aside a choice of
law agreement if applying the law of another country or
giving effect to the
agreement would be contrary to public policy.
- 15.74 During
their lifetime, partners should be entitled to agree that the law of a nominated
country should apply to some or all
of their property on death (a “choice
of law agreement”). These agreements might take many forms. They might
simply specify
that the law of a nominated country should apply to the division
of their property on death or the partners may make an agreement
in accordance
with the law of another country with respect to the status, ownership and
division of some or all of their property
(overseas property sharing
agreement).982F[983] They might
include mutual will agreements or other forms of succession agreements. The
agreements could extend to determining that
the law of a nominated country
should apply to any potential claims that the surviving partner might have
against the deceased partner’s
estate.
- 15.75 Choice of
law agreements should include agreements where the partners have made an implied
choice of law in respect of some
or all of their property. This addresses the
risk that, in some cases, an agreement may fail to specify that the law of a
particular
country is to apply to the partners’ property but it is
apparent from the terms of the agreement that the partners intended
that law to
apply.983F[984] Where the partners
made an agreement about the status, ownership and division of some or all of
their property in accordance with
the law of another country and for whatever
reason that agreement is unenforceable under that country’s law, it will
generally
be appropriate that the default laws of the nominated country will
continue to apply.
- 15.76 These
agreements should be subject to the same validity requirements recommended in
the PRA review,984F[985] meaning
that a choice of law agreement will only be valid if it:
(a) is in writing;
(b) is signed by both partners; and
(c) meets the legal requirements of a valid agreement under the law of the
country that is applied under the agreement (the nominated
country) or under the
law of the country with which the relationship had its closest connection.
- 15.77 If a
relationship has no connection to the nominated country and Aotearoa New Zealand
is the country with which the relationship
had its closest connection, a choice
of law agreement must meet the legal requirements of a valid agreement under New
Zealand law.
We consider the point in time for determining whether there is any
connection should be the time of making the agreement.
- 15.78 The court
should also retain a residual discretion to set aside a choice of law agreement
if applying the law of another country
or giving effect to the agreement would
be contrary to public
policy.985F[986] It is appropriate
that a court has discretion not to give effect to a valid agreement (wholly or
in part) in order to maintain the
integrity of the New Zealand legal system and
New Zealand family law policy. We also consider that a court should have the
same discretion
where the law of another country applies under the closest
connection test.
- 15.79 As
recommended in the PRA review, where only part of an agreement or a particular
aspect of foreign law is contrary to public
policy, the application of the new
Act should be limited to remedying the specific public policy violation. In our
view, this best
promotes partners’ autonomy to choose the property
consequences of the end of their
relationship.986F[987]
Enforcement
RECOMMENDATION
R128
The court should have broad powers to give effect to relationship property
orders, family provision awards and testamentary promise
awards. These should
expressly include the power, in relation to property situated outside Aotearoa
New Zealand, to order a party
to a proceeding to transfer property or pay a sum
of money to another party.
- 15.80 We
recommend that the court should have broad powers to give effect to relationship
property, family provision and testamentary
promise awards, and this should be
expressed in statute. Where the estate property or relationship property
includes property situated
outside of Aotearoa New Zealand, the court’s
powers would allow them to make orders in respect of the property situated in
Aotearoa New Zealand, taking account of the value of the overseas property. The
court would also have the power to order a party
to transfer property situated
outside Aotearoa New Zealand or pay a sum of money to the other party (in
personam orders).
Renvoi
RECOMMENDATION
R129
The courts should continue to determine the application of renvoi in a
particular case when relevant but the application of renvoi
should not be
referred to in statute.
- 15.81 We
recommend that the courts should continue to determine the application of renvoi
in a particular case when relevant but the
application of renvoi should not be
referred to in statute.987F[988]
As far as we are aware, renvoi is not commonly applied in Aotearoa New
Zealand.988F[989] Dr Maria Hook
and Jack Wass suggest that the doctrine is a potentially useful tool for the
courts to retain as it may serve a jurisdictional
function in cases where the
New Zealand court seeks to recognise, support or supplement the subject-matter
jurisdiction of the courts
of the lex
causae.989F[990] It may assist
with the enforcement of a New Zealand judgment in the foreign
jurisdiction.990F[991]
Jurisdiction
RECOMMENDATION
R130
The new Act should confirm the broad subject-matter jurisdiction of te
Kōti Whānau | Family Court and te Kōti Matua
| High Court but
should not otherwise include bespoke jurisdictional rules.
- 15.82 We
recommend that the new Act should confirm the broad subject-matter jurisdiction
of te Kōti Whānau | Family Court
(the Family Court) and the High Court
but should not otherwise include bespoke jurisdictional
rules.991F[992] We want to avoid
provisions that operate as a unilateral choice of law rule and a constrained
jurisdictional rule.992F[993]
- 15.83 Personal
jurisdiction of the court should continue to be established in the usual manner
according to the Family Court Rules
and High Court
Rules.993F[994] Rule 6.27 of the
High Court Rules may require amendment to enable service without leave of the
court. For example, it appears that
a personal representative could not serve an
interested party overseas without leave where the claim relates to succession
and the
deceased was domiciled in Aotearoa New Zealand but did not have land or
other property situated
here.994F[995]
Abolishing the Moçambique rule
RECOMMENDATION
R131
The new Act should confirm that the Moçambique rule has no
application in matters covered by that Act.
- 15.84 We
recommend that the new Act should confirm for the avoidance of doubt that the
Moçambique
rule995F[996] has no application
in matters covered by that Act. Under this common law rule, the courts have no
jurisdiction in proceedings principally
concerned with a question of title to,
or the right to possession of, foreign immovable property, subject to two
exceptions: the
court’s in personam jurisdiction to enforce
contractual or equitable
obligations996F[997] and the
jurisdiction to determine questions of foreign title where they arise
incidentally for the purpose of administering an
estate.997F[998] The rule has been
the subject of much criticism, with critics concerned that it produces illogical
and unsatisfactory
results.998F[999] The Court of
Appeal is sympathetic to the criticism of the Moçambique
rule.999F[1000] The rule creates
confusion, with practitioners and courts sometimes struggling to determine
whether a claim falls within the rule
or its
exceptions.1000F[1001] The
intention of our recommendations is to move away from the lex situs rule, and we
note the comments of the Australian Law Reform
Commission that retaining the
Moçambique rule once the lex situs rule had been abolished would
be anomalous.1001F[1002]
CASE STUDIES
- 15.85 To
further clarify how our recommendations on cross-border matters would apply in
practice, we have included three case studies.
Case study — Zane
Zane dies in Aotearoa New Zealand with immovable and
movable property here and immovable property in Belgium (assume Belgium requires
local administration and has forced heirship rules). Zane has a valid New
Zealand will that leaves all his immovable property to
his friend Joe and the
residual estate (movable property) to a charity. Zane has an adult child,
Pierre, who he has not seen for
30 years, who lives in Belgium.
Zane had lived in Aotearoa New Zealand for 30 years. He was retired but had
previously owned and managed a local dairy for 20 years
and was well known in
the community for his volunteer work at the local sports centre. In recent
years, Zane had spoken frequently
to friends about his desire to return to
Belgium before he died.
Likely outcome under the current law
- 15.86 Probate
is granted in Aotearoa New Zealand.
- 15.87 A New
Zealand court might need to determine whether Zane was domiciled in Aotearoa New
Zealand or whether his desire to return
to Belgium before he died indicated that
he never formed the intention to live here indefinitely and therefore remained
domiciled
in Belgium.
- 15.88 If the
court determined Zane was domiciled in Aotearoa New Zealand, Joe could take the
immovable property in Aotearoa New Zealand
and the residual estate would go to
the charity (both subject to a potential FPA claim from Zane’s son,
Pierre). Administration
would be granted in Belgium. Pierre would take the
immovable property in Belgium under the forced heirship rules. Joe would have
no
claim on that property. If Pierre chose to bring an FPA claim to obtain further
provision from the estate in Aotearoa New Zealand,
a court would take into
account the property that he received in Belgium when deciding whether to make
an award.
- 15.89 If the
court determined Zane was domiciled in Belgium, Pierre could also dispute the
charity’s claim to the residual estate.
Likely outcome
under our recommendations
- 15.90 Probate is
granted in Aotearoa New Zealand.
- 15.91 It is
likely that Zane’s connections to Aotearoa New Zealand would mean that a
New Zealand court would determine he was
habitually resident here. Under our
recommendations, this would mean that New Zealand law should apply to the
succession of all of
Zane’s estate, including the property in Belgium.
- 15.92 Joe could
take the immovable property in Aotearoa New Zealand and the residual estate
would go to the charity (both subject
to a potential family provision claim from
Pierre, discussed below).
- 15.93 Administration
is granted in Belgium. The following might happen:
(a) Belgium’s court applies its own choice of law rules and finds that
Belgian law applies to the immovable property (either
because the scission
principle applies or Belgian law is otherwise found to be applicable) and
considers that Pierre is entitled
to the immovable property in Belgium under
their forced heirship rules. Joe is unlikely to be able to access that
property.
(b) The New Zealand court could grant in personam relief against the
Belgian administrator in relation to the Belgian immovable property (requiring
the administrator to realise the
property and distribute the proceeds to Joe)
but may decline jurisdiction to do so if the order would not be enforceable in
Belgium.
(c) It is unlikely, but a Belgian court might apply New Zealand law and hold
that Joe is entitled to all the immovable property.
(However, there might be
restrictions on foreign ownership, for example, that mean that Joe is only be
entitled to the value of the
property, which needs to be sold.)
- 15.94 Under
Option One of our family provision proposals (discussed in Chapter 5), Pierre
could claim family provision in Aotearoa
New Zealand to obtain an award. The
award could be met rateably against the whole estate or could be met from
specific property.
A New Zealand court would take into account any property
Pierre inherited through the forced heirship rules in Belgium.
Case study — Solly and Alex
Solly and Alex are in a de facto relationship of 10
years’ duration, and Aotearoa New Zealand is the country most closely
connected
to that relationship. They have a home in Wellington. Alex regularly
travels to Texas as he has significant business interests there.
Alex has three
children from a former marriage who live in Texas. Solly and Alex separate and
begin relationship property proceedings
in Aotearoa New Zealand to divide their
property. Then Alex dies. Before moving to Aotearoa New Zealand, Alex made a
will in Texas
in which he left everything to his
children.
Likely outcome under our
recommendations1002F[1003]
- 15.95 Because
the relationship property claim was filed before Alex died, these proceedings
would continue in the New Zealand court.
- 15.96 If the
couple had relationship property in Texas, the New Zealand court would include
the value of that property in its division.
Depending on the value of property
in Aotearoa New Zealand and in Texas, the implementation of the division may or
may not be able
to be met through the property located in New Zealand. If not,
the court would have the power to grant in personam orders requiring
the sale
and/or transfer of property to give effect to the appropriate division.
- 15.97 The total
value of Alex’s estate would be calculated once Solly had received his
share of relationship property.
- 15.98 If Alex
was found to be habitually resident in Aotearoa New Zealand, Solly might also be
able to claim family provision under
New Zealand law.
- 15.99 If Alex
was found to be habitually resident in Texas, Solly’s ability to claim
against the estate would depend on Texan
law.
Alternative
facts and outcome
- 15.100 Suppose
that Solly and Alex had not separated prior to Alex’s death.
- 15.101 The most
likely scenario is that Alex was habitually resident in Aotearoa New Zealand.
This would mean that Solly could claim
a division of relationship property under
New Zealand law and bring a family provision claim if that was also
appropriate.
- 15.102 However,
if Alex was habitually resident in Texas, Texan law would be the applicable law
to determine the succession to Alex’s
estate, including any relationship
property claims on that estate. This would allow the same law to apply to all
claims against the
estate and therefore balance the interests of all relevant
parties, including Solly’s interests. In most cases, a New Zealand
court
would apply Texan law (if proceedings were brought in Aotearoa New Zealand for
division) or enforce a Texan judgment (if proceedings
were brought and judgment
obtained in Texas).
- 15.103 However,
depending on how Texan law would treat Solly, there might be rare cases where a
New Zealand court does not apply Texan
law or enforce a Texan judgment. For
example, if Texan law did not regard a de facto partner as having any rights to
relationship
property so Solly received no interest in the New Zealand home, the
court might consider that application of Texan law or enforcement
of a Texan
judgment, as the case may be, were contrary to public policy.
Case study — Fetu
Fetu dies without a will and was habitually resident
in Aotearoa New Zealand. He is survived by his wife Ruth and his two children
from a former relationship, Olivia and Nikau. Fetu owned the home in Gisborne in
which the couple lived (worth $600,000). He also
owned a small apartment in New
South Wales (NSW) worth $400,000.
Likely outcome under the current law
- 15.104 Ruth
would obtain letters of administration in both NSW and Aotearoa New
Zealand.
- 15.105 The
Gisborne home would be distributed according to the intestacy rules under New
Zealand’s Administration Act. This
would mean that Ruth receives the
personal chattels, a prescribed amount or “statutory legacy” of
$150,000 and one-third
of the remaining $450,000 ($150,000). Her total share
would be worth half the value of the home ($300,000). Olivia and Nikau would
each receive $150,000.
- 15.106 The NSW
apartment would be distributed according to the NSW intestacy
rules.1003F[1004] Ruth would
receive Fetu’s personal effects, a statutory legacy of
$350,0001004F[1005] and one-half
of the remaining $50,000. Her total share of the Sydney apartment would be
$375,000 (about 94 per cent of its total
value). Olivia and Nikau would each
receive $12,500.
- 15.107 This
means that Ruth would be entitled to two statutory legacies when she would only
be entitled to one if both the properties
were located in the same jurisdiction.
Likely outcome under our recommendations
- 15.108 Ruth
would obtain letters of administration in both NSW and Aotearoa New
Zealand.
- 15.109 As Fetu
was habitually resident in Aotearoa New Zealand, the entire estate could be
distributed according to the New Zealand
intestacy rules. Under our
recommendations, this would mean that Ruth receives the family chattels and
$500,000 (half the value of
the whole estate, made up of the home in Gisborne
and the apartment in NSW). Olivia and Nikau would share equally in the remaining
half ($250,000 each).
- 15.110 Suppose
that Fetu was habitually resident in NSW. The entire estate could be distributed
under NSW law. Ruth would receive
Fetu’s personal effects, a statutory
legacy of $350,000 and one-half of the remaining estate (including the home in
Gisborne).
Her total share would be $675,000. Olivia and Nikau would share
equally in the remaining half ($162,500 each).
CHAPTER 16
Other reform matters
IN THIS
CHAPTER, WE CONSIDER:
- the need for
education about the law relating to succession;
- the
court’s power to declare wills valid when they do not comply with the
requirements of the Wills Act 2007;
- the absence of
recognition for ōhākī in state law;
- revocation of
wills upon marriage or entering a civil union and revocation of certain
dispositions under a will at the end of a marriage
or civil union;
- the application
of the law relating to succession to multi-partner relationships;
- the threshold
for administering an estate without the need for a grant of probate or letters
of administration; and
- claims against
an estate and the availability of social security.
INTRODUCTION
- 16.1 This
final chapter of the report addresses some separate and important matters that
do not readily fit in the earlier chapters
of the report.
THE NEED FOR EDUCATION ABOUT THE LAW RELATING TO
SUCCESSION
- 16.2 The
low levels of awareness and understanding of the law relating to succession,
both among the public and professional advisers,
has been a key theme emerging
from our research and engagement throughout this review.
- 16.3 For
example, some lawyers have told us that will-makers, their surviving partners
and some lawyers do not have much knowledge
of the Property (Relationships) Act
1976 (PRA) and how it applies on death. Just over half (57 per cent) of the
respondents in the
Succession Survey were “fully aware” family
members can challenge a will if they think it does not properly provide for
them.1005F[1006] Respondents
without a will (particularly younger respondents without a will) had lower
levels of awareness.1006F[1007]
Similarly, we have been told that many people have little or no awareness of
other matters such as:
(a) the importance of having a will and the way an intestate estate will be
distributed;
(b) the consequences of holding property in such a way that it does not fall
into an estate, such as jointly owned assets or property
settled on trust;
and
(c) how to make or resolve claims against estates.
Results of consultation
- 16.4 Submitters
to the Issues Paper and the consultation website commented on the importance of
improving public understanding of
the laws relating to will-making and estates,
with one website submitter stating that, “education is key to making
changes
successful”.
- 16.5 A
consistent theme among submissions was the need for further initiatives to
encourage the public to make wills, with some submitters
suggesting that these
should target groups of the population who are less likely to make wills.
Citizens Advice Bureau described
the need for a culture shift in Aotearoa New
Zealand to support will-making as “a natural part of life, and something
that
is for everyone, not just those who own their own home or have a sizeable
estate”.
- 16.6 Community
Law Centres o Aotearoa (Community Law) commented that many of its clients are
intimidated and confused by the legal
system, with some clients even fearing
that the consequences of getting something wrong when administering an estate
could lead to
criminal charges. Many Community Law clients are reluctant to
engage if it means they must go to court. It is common that clients
are unaware
of timeframes and wish to contest the will more than 12 months after probate has
been granted. Community Law considered
that there is much work to be done to
educate the public and make the law as accessible as possible. It would like to
see information
relating to succession communicated in plain English and te reo
Māori and Māori concepts used as much as possible.
- 16.7 Death
Without Debt submitted that the process of obtaining a grant of administration
should also be made more accessible so that
any person with an average degree of
literacy is able to obtain a grant without the use of a lawyer.
- 16.8 Submitters
to the Issues Paper supported our suggested steps that the Government could take
to improve awareness and understanding
about the law, particularly by providing
prescribed information at certain interactions that may affect a person’s
succession
plans, for example, when buying or selling property or opening a
joint bank account. Chapman Tripp noted that the information provided
on Te
Tāhū o te Ture | Ministry of Justice website is useful and would be a
good place to present information about the
new Act. Additionally, one website
submitter suggested that tutorial videos about the court process would be useful
so that people
could get a better understanding about what to expect.
Conclusions
RECOMMENDATION
R132
The Government should consider ways to improve awareness and understanding of
the law related to succession and the new Act.
- 16.9 While the
new Act should improve the accessibility of the law by drawing together relevant
provisions under one statutory regime,
we consider further education for the
public and professional advisers is needed.
- 16.10 We
recommend that the Government should consider ways to improve awareness and
understanding of the law related to succession
and the new Act. Consistent with
our recommendations in the PRA review, this should include consideration
of:1007F[1008]
(a) a one-off public education campaign, which could be timed to coincide with
the implementation of the recommendations in the review;
(b) education in secondary school programmes and for professionals such as
lawyers, financial planners, business advisers and chartered
accountants;
(c) the provision of information at different points of interaction with
government departments, such as when applying for a marriage
or civil union
licence, when applying for state benefits and when applying for New Zealand
residency;
(d) introducing requirements on registered professionals or organisations such
as real estate agents and banks to provide some form
of prescribed information
to clients when buying or selling property, applying for credit or opening joint
bank accounts; and
(e) producing and providing information online, in Family Courts, High Courts
and Māori Land Courts around Aotearoa New Zealand
and in community
organisations such as Citizens Advice Bureau and Community Law Centres.
- 16.11 Any
education campaign should be tailored to target the specific communities it is
intending to reach.
POWER TO VALIDATE WILLS
- 16.12 Section
14 of the Wills Act 2007 provides te Kōti Matua | High Court (the High
Court) with the power to validate a document
that appears to be a will but does
not comply with the requirements for a valid will set out in section 11 of the
Wills Act. The
court is empowered under section 14 to make an order declaring
the document valid if it is satisfied that the document expresses
the deceased
person’s testamentary intentions.
- 16.13 The court
may only validate a non-compliant will when there is a “document”,
which is defined under the Wills Act
as “any material on which there is
writing”. This precludes the court validating any evidence of testamentary
intention
in which there is not writing, such as audio or video recordings. Many
individuals we heard from thought this was unsatisfactory.
For example, the
situation could arise where the court could not give effect to a video recording
of a deceased’s explanation
of their testamentary intentions, but had
someone made written notes instead (arguably far less reliable than a video
recording),
the court could exercise its validation power. However, in
Pfaender v Gregory, the High Court validated transcripts transcribed
after the will-maker’s death of audio recordings of the will-maker
providing
their will
instructions.1008F[1009]
Results of consultation
- 16.14 In
the Issues Paper, we explained that the focus of this review is people’s
substantive rights to an estate, assuming
a valid will either exists or does not
exist. However, given the comments we had received during preliminary
engagement, we proposed
to note the issue as a matter the Government may wish to
consider further.
- 16.15 Several
submitters commented on the court’s validation powers. Public Trust and Te
Kāhui Ture o Aotearoa | New Zealand
Law Society (NZLS) supported a review
in this area. NZLS agreed that the Government should consider the issue further,
including
whether it should be contained in the new Act. Public Trust, however,
submitted that the Commission should consider recommending
an amendment to the
Wills Act to allow people to take advantage of other mechanisms such as audio
and video recordings.1009F[1010]
Public Trust submitted that these may be reliable sources of evidence, which can
be further verified using available technical methods
and practical steps.
Public Trust’s experience through the COVID-19 pandemic has highlighted
that reform is required to modernise
the law.
- 16.16 One
submitter, the Family Law Committee of Auckland District Law Society (ADLS), did
not agree that oral or video recordings
or documents recorded digitally should
be validated as wills. In ADLS’s view, the courts have been too liberal in
the exercise
of their validation power under section 14.
Conclusions
RECOMMENDATION
R133
The Government should consider reviewing the validation powers
in section 14 of the Wills Act 2007, including whether the High Court
should
have the power to validate audio or visual recordings as a will or other
expression of testamentary wishes.
- 16.17 We
recommend that the Government should consider a review of the validation powers
in section 14, including whether the High
Court should have the power to
validate audio or visual recordings as a will or other expression of
testamentary wishes.
- 16.18 Matters
requiring consideration and consultation could include:
(a) the risk that people may be dissuaded from making valid written wills
because audio or visual recordings can be validated by
a
court;1010F[1011]
(b) whether any restrictions would be placed on when an audio or visual
recording would qualify for potential validation by a court
– for example,
whether the recording must have been made in the presence of witnesses; and
(c) what technical steps might be needed to verify the authenticity of the
recording.
- 16.19 In the
context of considering the section 14 validation power, the Government should be
aware of ōhākī, as discussed
below.
ŌHāKī
- 16.20 Ōhākī
may be understood loosely as an oral
will.1011F[1012] The physical
act of giving an ōhākī is something close to a “deathbed
declaration”, which is made as a
person recognises the signs of oncoming
death.1012F[1013] It is
sometimes made in the kāinga (home) of the person dying in the presence of
their whānau.1013F[1014]
Traditionally, depending on the status of the person making the
ōhākī, it might also be made publicly in front of
extended
whānau or hapū in order to cement and publicly validate the wishes of
the person dying. The whānau recognise
the situation and treat it with
appropriate
respect.1014F[1015]
- 16.21 Ōhākī
must be understood within the particular context in which it is
practised.1015F[1016] There is
no universal approach or standardised practice for ōhākī,
although similar tikanga values are present throughout.
The person giving the
ōhākī is usually in a state of heightened tapu because they are
close to death.1016F[1017]
Whanaungatanga plays an important role, as the ōhākī is
given and validated in the presence of the whānau. The
mana of the person
dying will also reinforce the mana of the ōhākī, and therefore
the weight attributed to the
ōhākī.1017F[1018]
Issues
- 16.22 State
law does not currently recognise ōhākī. The Wills Act requires
that a will must be in writing, signed and
witnessed to have effect as a
testamentary
instrument.1018F[1019] As a
result, some Māori may die intestate despite expressing their testamentary
wishes according to their tikanga, including
through ōhākī. This
fails to recognise tikanga as an independent source of rights and obligations in
Aotearoa New
Zealand and arguably fails to meet the Crown’s obligations
under te Tiriti o Waitangi.
Results of consultation
- 16.23 In
the Issues Paper, we asked whether ōhākī should be recognised in
state law as a will or as an alternative
but equally valid form of testamentary
disposition. We also asked what the appropriate requirements would be to
evidence ōhākī.
The consultation website did not discuss
ōhākī.
- 16.24 We
received eight submissions on ōhākī. Te Hunga Rōia
Māori o Aotearoa (THRMOA), Ngā Rangahautira,
Public Trust, NZLS,
Chapman Tripp, Morris Legal and Michael Reason and Azania Watene supported the
recognition of ōhākī
in state law but ADLS did not, commenting
that certainty is necessary.
- 16.25 Submitters
generally preferred recognising ōhākī as a valid expression of
testamentary wishes but not subsuming
it into the concept of a will. Chapman
Tripp submitted that ōhākī has its own mana and tapu and may be a
more authoritative
form of testamentary disposition than a will, “he tapu
tō te kupu”. THRMOA observed that it must be framed broadly,
as with
any tikanga, to permit its evolution. Ngā Rangahautira said recognising
ōhākī would allow for Māori
understandings of testamentary
freedom to be recognised, balancing testamentary freedom and tikanga obligations
due to the practice
being intrinsically bound with whānau and whakapapa.
Reason and Watene observed that a review of the succession laws cannot
accurately encompass mātauranga Māori if it does not consider a place
for ōhāki. Morris Legal suggested that
one way to recognise
ōhākī in state law would be to make an exception to the
requirement in the Wills Act that a will
must be in writing, strictly for the
purposes of ōhākī. Morris Legal also said that thought would need
to be given
to the process of obtaining probate of such wills, which might
happen through the centralised probate registry or te Kooti Whenua
Māori |
Māori Land Court (the Māori Land Court).
- 16.26 Several
submitters commented on how an ōhākī should be evidenced. NZLS
said significant consideration would need
to be given to this, and in its view,
as a minimum there would need to be corroborative evidence from at least two
witnesses present
when the ōhākī was made. Ngā Rangahautira
submitted that Pākehā practices towards evidential issues
are not
appropriate when ōhākī are contested. Western institutions like
courtrooms, and the presence of strangers,
such as officials, to evidence
ōhākī, would inhibit the mauri of orality and contravene the
intention of including
ōhākī in succession law and may cause
further difficulty for whānau at a difficult time. Public Trust said that,
from an executor’s perspective, reliable recorded evidence would be
preferred to enable efficient administration of the estate
and that this could
be in the form of affidavits from those who were present at the time the
ōhākī occurred. Reason
and Watene noted the challenge of what
would be sufficient evidence but suggested whānau wānanga may assist.
Chapman Tripp
submitted that whether circumstances deem the tikanga of
ōhākī appropriate should be guided by independent pūkenga
on
a case-by-case basis.
- 16.27 Several
submitters responded to a further question in the Issues Paper, confirming that
written wills also provide a valuable
opportunity for Māori to express
testamentary freedom.
RECOMMENDATION
R134
Conclusions
The Government should consider recognising
ōhākī as an expression of testamentary wishes enforceable under
state law.
- 16.28 Consultation
indicated that Māori wish to have the choice to make either a written will
or an ōhākī and
have the ōhākī enforced under
state law. During the passage of the Wills Act through Parliament,
ōhākī
were discussed several times by members of the Māori
Party (as it was then
called),1019F[1020] who
expressed a wish for the practice to be recognised within the
law.1020F[1021]
- 16.29 The
central issue that arises is how the Crown should exercise its kāwanatanga
to facilitate the exercise of tino rangatiratanga
by Māori over expression
of testamentary wishes. We agree with submitters’ views that a review of
the succession laws
cannot accurately encompass mātauranga Māori if it
does not consider a place for ōhākī.
- 16.30 We think
that state law should facilitate the ability for Māori to make and act on
ōhākī in accordance with
tikanga. This is not only appropriate
because it permits the exercise of tino rangatiratanga over the expression of
testamentary
wishes but it may also respond to the statistically
disproportionate number of Māori who die without making a will.
- 16.31 There are
nonetheless several issues to be resolved before implementing this, including
matters that fall outside of our terms
of reference and matters that will
require further consultation with Māori.
- 16.32 We observe
that one approach would be to amend the Wills Act to become the Wills and
Ōhākī
Act.1021F[1022] This amended Act
could:
(a) acknowledge ōhākī as a legitimate form of expressing
testamentary wishes;
(b) require that the validity of an ōhākī be determined in
accordance with the tikanga of the whānau;
(c) set out a basis on which evidence of the ōhākī is
established;1022F[1023]
(d) provide for the resolution of disputes over the existence of the
ōhākī, its terms and its relationship with any
written will that
may have been made in accordance with the current requirements of the Wills Act;
and
(e) provide for the Māori Land Court to have jurisdiction over these
matters as appropriate.
- 16.33 In Chapter
7, we also discuss the potential for an intestacy regime governed by tikanga.
SECTIONS 18 AND 19 OF THE WILLS ACT 2007
- 16.34 Section
18 of the Wills Act revokes a person’s will in its entirety when they
marry or enter a civil union. The rule does
not apply if it is clear from the
will or the surrounding circumstances that the will was made in contemplation of
the marriage or
civil union.
- 16.35 Section 19
of the Wills Act applies when the court grants a dissolution or separation order
under the Family Proceedings Act
1980 in respect of a marriage or civil union.
The section applies to certain provisions relating to the will-maker’s
former
spouse or civil union partner in the will-maker’s will,
namely:
(a) the appointment of the spouse or partner as executor or trustee of the
will;
(b) the appointment of the spouse or partner as a trustee of property disposed
of by the will to trustees on trust for beneficiaries
who include the spouse or
partner’s children;
(c) a disposition to the spouse or partner, except for a power of appointment
exercisable by the spouse or partner in favour of the
spouse or partner’s
children; or
(d) the disposition for the payment of a debt secured on:
(i) property that belongs to the spouse or partner; or
(ii) property that devolved by survivorship on the spouse or
partner.
- 16.36 Section
19(4) provides that any provision of these kinds is void. The will must be read
as if the former spouse or partner died
immediately before the will-maker. The
provision will remain, however, if the will makes it clear the will-maker
intended the provision
to be effective even if a court grants a separation or
dissolution order.
- 16.37 While
sections 18 and 19 are located within the Wills Act, we consider they warrant
our consideration in this review. Both provisions
govern a person’s
entitlement to a deceased’s estate solely based on the nature of the
relationship (or termination of
relationship) with the deceased. Our
consideration of relationship property law on the death of a partner would be
incomplete without
considering these provisions.
Issues
- 16.38 Section
18 presumes that a marriage or civil union is such a significant event in a
person’s life that any prior will
they had must no longer reflect their
testamentary
intentions.1023F[1024] It
assumes that the intestacy rules more closely reflect how the will-maker would
wish their estate to be distributed.
- 16.39 We doubt
these presumptions are accurate in contemporary Aotearoa New Zealand. It is now
common for most couples to have lived
for some time in a committed de facto
relationship before choosing to marry or enter a civil
union.1024F[1025] A marriage is
therefore often seen as a formalisation of an existing relationship rather than
a material change in commitment and
obligation.1025F[1026] Most
individuals we heard from during our preliminary engagement agreed that section
18 requires reform as it no longer represents
how people live their lives and
organise their relationships.
- 16.40 We are
also mindful that section 18 does not apply to people who enter long-term de
facto relationships. That may mean the law
provides different outcomes for
relationships that are substantively similar, which risks being discriminatory
on the grounds of
marital status under human rights
law.1026F[1027]
- 16.41 Section 19
presumes that the will-maker would have wished to cut ties with their former
spouse or civil union partner when the
relationship is formally dissolved. In
the Issues Paper, we expressed our preliminary view that this is a reasonable
assumption to
make. However, we said there are two main issues with section 19.
First, like section 18, section 19 does not apply to de facto relationships,
meaning the law may provide different outcomes for relationships that are
substantively similar. Second, we anticipated that there
will be many cases
where people will have wished to cut ties with their former partner before they
obtain a formal separation or
dissolution order from the court. It may be some
time after separation that former partners apply for formal orders.
Results of consultation
- 16.42 In
the Issues Paper, we presented our proposal to repeal section 18 of the Wills
Act because a marriage or civil union does
not necessarily represent a point in
time when most will-makers would wish to change who should or should not benefit
under their
will.
- 16.43 Most
submitters supported repealing section 18. This included Public Trust, NZLS,
Professor Bill Atkin and many law firms and
lawyers. These submitters broadly
agreed with the issues identified by the Commission, with several submitters
stating that the revocation
of a will when entering a marriage or civil union
was anomalous or no longer relevant to modern society.
- 16.44 Three
submitters, ADLS, Bill Patterson and a property law
practitioner,1027F[1028]
expressed reasons in favour of retaining section 18 or a modified version of it.
Patterson submitted that entering a marriage or
civil union is usually a
carefully considered decision that effects a significant change in
circumstances. The ADLS Committee members
were divided in their opinion, but
some members considered that section 18 should be retained because there are
still many cases
where a marriage or civil union is not preceded by a qualifying
de facto relationship. Those members submitted that applications
for a marriage
or civil union licence should therefore include literature explaining the
revocation rules and should be accompanied
by a standard form codicil that could
be quickly and simply executed by the will-maker to record that, in anticipation
of the marriage
or civil union, the will-maker confirms that the provisions of
their existing will should continue to be of effect after the ceremony.
ADLS
further commented that, in its view, the law is a justified limitation in terms
of the New Zealand Bill of Rights Act 1990 and
therefore the potential for
discrimination is not one of great concern. The property law practitioner
suggested that an additional
category could be added to section 18(3) so that a
marriage or civil union will not revoke a will if the will either expressly or
by circumstance contemplates the parties’ de facto relationship
immediately preceding their marriage or civil union.
- 16.45 In the
Issues Paper, we also proposed two amendments to section 19 of the Wills Act.
First, it would apply to all relationship
types, including de facto
relationships. Second, it should apply two years after the couple ceased living
together in a relationship.
- 16.46 Again,
most submitters supported these proposals. Several submitters, however, noted
possible issues or raised potential variations
to consider. Chapman Tripp, for
example, agreed that section 19 should apply to all relationship types but
suggested that as soon
as a couple has permanently separated, any provisions
under a will where one benefits the other should terminate. NZLS agreed with
our
proposals but commented that, in the absence of an agreement recording the date
of separation, there will likely be some difficulties
deciding when a couple
“ceased to live together in a relationship”. Morris Legal also
submitted that partners who have
entered a settlement agreement should also be
able to confirm that section 19 applies to their
wills.1028F[1029]
- 16.47 One
submitter, ADLS, did not agree with the Commission’s proposals regarding
section 19 but provided no explanation of
its reasons.
- 16.48 Finally,
we asked whether these proposals for the reform of sections 18 and 19 of the
Wills Act are problematic for Māori
customary marriages. While we received
several comments on Māori customary marriages generally, we did not receive
any specific
comment about the interrelationship with our reform proposals for
sections 18 and 19.
Conclusions
RECOMMENDATIONS
R135
R136
R137
Section 18 of the Wills Act 2007 should be repealed.
Section 19 of the Wills Act 2007 should be amended to apply two years after
the point when the partners in any relationship type ceased
to live together in
a relationship.
The definition of de facto relationship in the Wills Act 2007 should be
amended to refer to two people who “live together as
a couple”,
consistent with the definition in the Property (Relationships) Act 1976.
- 16.49 We
recommend that section 18 of the Wills Act should be repealed because a marriage
or civil union does not necessarily represent
a point in time when most
will-makers would wish to change who should or should not benefit under their
will.
- 16.50 We
recommend two amendments to section 19. First, section 19 should apply to the
end of all relationship types, namely marriages,
civil unions and de facto
relationships. It should not be necessary for the de facto relationship to have
lasted three years. A three-year
qualifying period is generally used to
determine eligibility to entitlements to relationship property and in an
intestacy.1029F[1030] The
three-year period is a measure of commitment and acts against the retrospective
imposition of property sharing obligations on
unsuspecting
partners.1030F[1031] In this
context, rather than determine eligibility, the focus is whether the will-maker
would have wished to cut ties with their
partner because of the separation. It
would be odd if gifts to a former partner of a three-year relationship were
rendered void but
gifts to a former partner of a two-year relationship remained.
- 16.51 We note
that the Wills Act defines de facto relationship by incorporating the definition
of de facto relationship under section
29A of the Interpretation Act 1999, which
refers to two people living together in the nature of marriage or civil union.
The PRA’s
definition, which the Administration Act 1969 incorporates,
differs as its central concept is two people who “live together
as a
couple”. We consider that a uniform definition of de facto relationship
across these closely related statutes (including
the new Act) is desirable, and
the Government should therefore also revise the definition of de facto
relationship in the Wills Act.
- 16.52 The second
amendment we propose is that section 19 should apply two years after the point
when the partners in any relationship
type ceased to live together in a
relationship. We consider this point in time is more likely to reflect most
people’s intentions
as to when they would wish their will to no longer
provide for their former partner, regardless of whether a formal separation
order
or dissolution has been obtained. It also aligns with our recommendations
in Chapters 4, 5 and 7 that former partners cease to be
eligible under the new
Act for relationship property entitlements, family provision awards and
entitlements in an intestacy two years
after separation.
MULTI-PARTNER RELATIONSHIPS
- 16.53 The
PRA is based on the notion of
“coupledom”.1031F[1032]
Relationship property entitlements only arise in marriages, civil unions and de
facto relationships that are intimate relationships
between two people. Although
the PRA contemplates relationship property entitlements arising in the context
of contemporaneous relationships,
relationship property law does not apply to
intimate relationships involving three or more
people.1032F[1033] Instead,
people in multi-partner relationships must rely on the general remedies in
property law or equity.
- 16.54 In the PRA
review, we discussed how the PRA does not apply to multi-partner relationships
and concluded that the property sharing
regime should not be extended to
multi-partner relationships at this
time.1033F[1034] We reasoned
that extending the regime to multi-partner relationships would be a fundamental
shift in policy and should be considered
within a broader context involving
more-extensive consultation about how family law should recognise and provide
for adult relationships
that do not fit the mould of an intimate relationship
between two people. Extending the property sharing regime to multi-partner
relationships would also be a complex exercise. Careful consideration would need
to be given to determining when and how multi-partner
relationships should
attract property consequences and what those property consequences should
be.
Results of consultation
- 16.55 In
the Issues Paper, we expressed our preliminary view to repeat the
recommendations from the PRA review, namely that the property
sharing regime
should not be extended to multi-partner relationships at this time.
- 16.56 Most
submitters who commented on the issue agreed with this view. Public Trust and
NZLS said that further research in this area
would be required to support any
future law reform relating to multi-partner relationships. One submitter, Morris
Legal, submitted
that both the PRA and the new Act will need to resolve the
difficulties associated with dividing property between parties following
a
polyamorous relationship, as identified in Paul v
Mead1034F[1035] and,
to the extent possible, it would be preferable to do this now while reforms of
both succession laws and the PRA are under way.
RECOMMENDATION
R138
Conclusions
The Government should consider undertaking research
to identify the nature and extent of multi-partner relationships in Aotearoa New
Zealand and how multi-partner relationships should be recognised and provided
for in the law.
- 16.57 The
relationship property provisions in the new Act should be premised on an
intimate relationship between two people. We observed
in the PRA review that it
is likely multi-partner relationships will become more prevalent in the
future.1035F[1036] The
Government should consider undertaking research in this area to support any
future law reform relating to multi-partner relationships.
- 16.58 Lastly, we
note that partners to a multi-partner relationship can make wills and contracts
through which they can arrange how
property is to be distributed on a
partner’s death. As discussed above, public education may be useful.
DISTRIBUTING AN ESTATE WITHOUT PROBATE OR LETTERS OF
ADMINISTRATION
- 16.59 Section
65 of the Administration Act provides that certain entities, such as
superannuation funds, banks, or the employer of
the deceased, can pay money to
certain relatives of the deceased, such as a surviving partner, without
administration of the estate
needing to be obtained. The amount of money must
not exceed the prescribed amount, which is currently set at
$15,000.1036F[1037]
- 16.60 Trustee
companies hold powers under the Trustee Companies Act 1967 to administer small
estates without a grant of
administration.1037F[1038]
Instead, the trustee companies file with the High Court an election to
administer the estate. The requirements for exercising this
power
are:1038F[1039]
(a) the deceased died either testate or intestate leaving property situated in
Aotearoa New Zealand;
(b) the gross value of the property does not exceed $120,000 (or such higher
amount prescribed by regulations);
(c) no person has obtained a grant of administration; and
(d) the trustee company would, in any case, be entitled to obtain a grant of
administration.
- 16.61 Public
Trust enjoys similar powers under the Public Trust Act 2001, again provided the
gross value of the estate does not exceed
$120,000.1039F[1040]
- 16.62 Throughout
this review, many individuals and organisations have stressed to us that it
should be possible to deal with estates
of greater value without the need to
obtain probate or letters of administration.
Results of consultation
- 16.63 The
feedback we received in consultation was consistent with what we had heard
earlier. Submitters considered that the $15,000
limit in section 65 of the
Administration Act should be increased. A particular issue was the situation of
KiwiSaver accounts, which
for many individuals may be the only asset greater
than $15,000.
- 16.64 Several
submitters proposed alternatives:
(a) Morris Legal said that Aotearoa New Zealand should follow the approach in
Australia and England where each financial institution
can set its own threshold
for the amount of funds that can be released without requiring probate.
(b) ADLS said that the $15,000 should be increased to match the amount in the
Trustee Companies Act (the gross value of the property
should not exceed
$120,000 or such higher amount as prescribed by regulations).
(c) MinterEllisonRuddWatts said that a grant of administration should only be
required for estates of more than $50,000 (CPI adjusted)
where the estate does
not involve immovable property. Further, personal representatives should be
required to file a declaration
in the High Court at the time of commencement of
administration that they have elected to proceed without grant of administration
and that the value of the estate is $50,000 or less.
- 16.65 Kiwi
Wealth, a KiwiSaver provider, said that in addition to the monetary threshold
being too low, section 65 of the Administration
Act has other difficulties. The
most significant is its application to de facto partners. De facto partners can
have difficulty evidencing
their claim under section 65 because they do not have
legal proof of a relationship. Kiwi Wealth also said de facto relationships
can
be ended more easily than marriages and civil unions and, in its experience,
have the potential to create rifts between potential
claimants under section
65.1040F[1041]
Conclusions
RECOMMENDATION
R139
The Government should consider whether to increase the monetary
threshold for distributing an estate without a grant of administration.
- 16.66 Because
the issue concerns matters of probate and administration rather than substantive
rights to an estate, this issue has
not formed part of our review. However, we
recommend that the Government should consider whether to increase the threshold
for distributing
estate money without a grant of administration. This review
might also consider whether different requirements should apply to KiwiSaver
or
other superannuation funds.
SOCIAL SECURITY AND THE FAMILY PROTECTION ACT 1955
- 16.67 Section
203 of the Social Security Act 2018 applies where a person has applied for or is
in receipt of a benefit under the Act
and they have a tenable claim under the
Family Protection Act 1955 (FPA) but have failed to take reasonable steps to
advance the
claim. Te Manatū Whakahiato Ora | Ministry of Social
Development may refuse to grant the benefit, grant it at a reduced rate
or
cancel a benefit already granted.
- 16.68 The
predecessor provision to section 203 was first enacted in section 18(3) of the
Social Security Amendment Act 1950. Parliamentary
debate during the enactment
explained that the provision was aimed at addressing what were known as
“social security
wills”.1041F[1042]
Will-makers were making wills that left the substantial part of their estates to
their adult children, leaving their surviving spouse
very little so they
qualified for social security
benefits.1042F[1043]
Results of consultation
- 16.69 Most
submitters who commented on this issue supported the Commission’s proposed
view that section 203 be repealed. These
submitters were NZLS,
MinterEllisonRuddWatts, Chapman Tripp and Bill Patterson. MinterEllisonRuddWatts
submitted that compelling
a potential claimant to issue proceedings exposes that
claimant to an award of costs if unsuccessful.
- 16.70 ADLS was
the only submitter to support the retention of section 203. No reasons were
given. Public Trust said that it had not
had sufficient experience with section
203 to form a view about whether it should be
repealed.
Conclusions
RECOMMENDATION
R140
Section 203 of the Social Security Act 2018 should be
repealed.
- 16.71 We
recommend that section 203 of the Social Security Act should be repealed. We
doubt the problems that existed in 1950 when
the provision was first introduced
cause the same issues
today.1043F[1044] In recent
times, the provision has rarely come before the courts, suggesting people are
rarely declined social security entitlements
for failing to pursue an FPA claim.
Further, there may be good reasons why a person may decide not to make a claim
against an estate.
For example, they may wish to preserve family relationships
and avoid dispute, or their relationship with the deceased may have been
of such
a nature that they feel uncomfortable seeking support from the estate.
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[1] Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019).
[2] We reviewed the extensive work
of the Commission on succession matters in the 1990s. See Te Aka Matua o te Ture
| Law Commission
Succession Law: Testamentary Claims – A discussion
paper (NZLC PP24, 1996); Te Aka Matua o te Ture | Law Commission The
Taking into Account of Te Ao Maori in Relation to Reform of the Law of
Succession (NZLC MP6, 1996; and Te Aka Matua o te Ture | Law Commission
Succession Law: A Succession (Adjustment) Act (NZLC R39, 1997). We issued
a survey to lawyers who work in succession law in April 2020 and received 23
responses (the Practitioner
Survey). We undertook this Practitioner Survey as
our initial plans for preliminary public engagement could not proceed due to the
COVID-19 pandemic. In June 2020, we held an initial wānanga with tikanga
and legal experts to consider the tikanga relevant
to succession. We engaged Te
Amokura Consultants Ltd to facilitate our engagement with Māori as we
prepared the Issues Paper.
We held several online hui with various groups
including whānau members and Māori Land Court staff.
[3] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021).
[4] See Lord Toulson "Democracy,
Law Reform and the Rule of Law" in Matthew Dyson, James Lee and Shona Wilson
Stark (eds) Fifty Years of the Law Commissions: The Dynamics of Law
Reform (Hart Publishing, Oxford, 2016) 127; David Ormerod “Reflections
on the Courts and the Commission” in Matthew Dyson, James
Lee and Shona
Wilson Stark (eds) Fifty Years of the Law Commissions: The Dynamics of Law
Reform (Hart Publishing, Oxford, 2016) 326; and Ellen France, Judge of the
Supreme Court of New Zealand “Something of a Potpourri:
A Judge's
Perspective on Law Reform” (address to Te Aka Matua o te Ture | Law
Commission’s 30th Anniversary Symposium,
Wellington, 3 November 2016).
[5] See Te Aka Matua o te Ture |
Law Commission The Second Review of the Evidence Act 2006 | Te Arotake
Tuarua i te Evidence Act 2006 (NZLC R142, 2019) at [1.18]–[1.33].
[6] This recognises that the
constitutional role of interpreting the provisions of legislation and applying
those provisions to the particular
facts of the case rests with the courts: see
Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed,
Brookers, Wellington, 2021) at [2.5.6] and [21.2.2]–[21.2.3]. In doing so,
the courts are able to resolve issues of
interpretation and develop the law in a
way that promotes the legislation's purpose and principles and ensures it works
as Parliament
intended.
[7] See Chapter 12.
[8] Te Aka Matua o te Ture | Law
Commission He Arotake i te Ture mō ngā Huarahi Whakatau a ngā
Pakeke | Review of Adult Decision-making Capacity Law: Terms of
Reference (October 2021).
[9] Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019).
[10] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021).
[11] Property (Relationships)
Act 1976, s 35A; and Family Court Act 1980, ss 11B–11D.
[12] In her submission on the
Issues Paper, Professor Jacinta Ruru described the Issues Paper as a
sophisticated path-setting engagement
with ao Māori, tikanga Māori and
te Tiriti o Waitangi, representing an exciting next-level engagement with ao
Māori
and Māori law. Te Hunga Rōia Māori o Aotearoa (THRMOA)
described the Commission’s approach as “ground-breaking”.
[13] Except for the Property
(Relationships) Act 1976, the Wills Act 2007 and the Succession (Homicide) Act
2007.
[14] Te Aka Matua o te Ture |
Law Commission Review of Succession Law: Rights to a person’s property
on death | He arotake i te āheinga ki ngā rawa a te tangata ka
mate ana (NZLC IP46, 2021) at [1.10]–[1.17]; and Te Aka Matua o te
Ture | Law Commission Relationships and Families in Contemporary New Zealand
| He Hononga Tangata, he Hononga Whānau i Aotearoa o
Nāianei (NZLC SP22, 2017).
[15] When discussing te Tiriti o
Waitangi | Treaty of Waitangi in this paper, we use “the Treaty” as
a generic term that
is intended to capture both the Māori text (te Tiriti o
Waitangi) and the English text (the Treaty of Waitangi). When we are
referring
to the Māori text only, we either use the term “te Tiriti”,
refer to “the Māori text”
or make this clear in the context.
When we are referring to the English text only, we refer to “the English
text" or make this
clear in the context. To the extent that the principles of
the Treaty, which have developed through jurisprudence, substantively
reflect
the rights and obligations arising from the texts, the principles may also be
captured by the term “the Treaty”.
Otherwise, we specifically refer
to “the principles of the Treaty” or to specific principles.
[16] See Sylvia Villios and
Natalie Williams “Family provision law, adult children and the age of
entitlement” [2018] AdelLawRw 11; (2018) 39 Adel L Rev 249 at 250.
[17] Rosalind F Croucher and
Prue Vines Succession: Families, Property and Death (5th ed, LexisNexis
Butterworths, Chatswood (NSW), 2019) at 23.
[18] See Administration Act
1969, ss 75, 77 and 78–79.
[19] This was recognised in the
Commission’s 1990s work on succession, where significant work was
undertaken by the Commission
and external consultants on te ao Māori and
succession. See Edward Taihakurei Durie “Custom Law” (paper prepared
for Te Aka Matua o te Ture | Law Commission, January 1994); Joan Metge
“Succession Law: Background Issues Relating to Tikanga
Maori” (paper
prepared for Te Aka Matua o te Ture | Law Commission, 1994); Joseph Williams
“He Aha Te Tikanga Maori”
(paper prepared for Te Aka Matua o te Ture
| Law Commission (draft), 1998); and David V Williams “He Aha Te Tikanga
Maori”
(paper prepared for Te Aka Matua o te Ture | Law Commission
(revised draft), 10 November 1998). The Commission retained consultants
(Professor Patu Hohepa, Dr David Williams and Waerete Norman) to advise on
succession as it relates to Māori families. A number
of hui were conducted
around Aotearoa New Zealand to assist the Commission to hear from Māori
about succession issues. Hohepa
and Williams drafted a paper published as Te Aka
Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori in
Relation to Reform of the Law of Succession (NZLC MP6, 1996). See also Te
Aka Matua o te Ture | Law Commission Māori Custom and Values in New
Zealand Law (NZLC SP9, 2001) at 66–68.
[20] For a broad-ranging
discussion of social organisation among Māori, see Te Rangi Hiroa | Peter
Buck The Coming of the Maori (Whitcombe and Tombs, Christchurch, 1949) at
331. In our Issues Paper we also acknowledged the place of death in te ao
Māori
in order to provide context for our discussion of tikanga relating to
succession: Te Aka Matua o te Ture | Law Commission Review of Succession Law:
Rights to a person’s property on death | He arotake i te
āheinga ki ngā rawa a te tangata ka mate ana (NZLC IP46, 2021) at
[2.39]–[2.42].
[21] Ani Mikaere “The
Treaty of Waitangi and Recognition of Tikanga Māori” in Michael
Belgrave, Merata Kawharu and David
V Williams (eds) Waitangi Revisited:
Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press,
Auckland, 2005) 330 at 331 and 334; and Joseph Williams “Lex Aotearoa: An
Heroic Attempt
to Map the Māori Dimension in Modern New Zealand Law”
(2013) 21 Taumauri | Waikato L Rev 1 at 2–5. See also Trans-Tasman
Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127,
particularly the reasons given by William Young and Ellen France JJ at
[166]–[169], Glazebrook J at [237], Williams J at [297]
and Winkelmann CJ
at [332].
[22] As recognised by te
Kōti Mana Nui | Supreme Court in Takamore v Clarke [2012] NZSC 116,
[2013] 2 NZLR 733 at [94]–[95]; and Trans-Tasman Resources Ltd v
Taranaki-Whanganui Conservation Board [2021] NZSC 127 at [9] and [169]. In
Ellis v R [2020] NZSC 89, submissions were sought on the application of
tikanga on the question of whether the Court has jurisdiction to hear an appeal
against
conviction after the death of the appellant. The Court issued its
judgment allowing the appeal to proceed, but reasons for that decision
are to be
provided with the judgment on the substantive appeal: at [5]. See also
Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2)
[2021] NZHC 291 at [43]–[47] and [58].
[23] Statutes referencing
tikanga include the Oranga Tamariki Act 1989 (see s 2 definitions of
“tikanga Māori” and “mana
tamaiti (tamariki)”);
Resource Management Act 1991; and Taumata Arowai–the Water Services
Regulator Act 2020. See also
Christian N Whata “Evolution of legal issues
facing Maori” (paper presented to Maori Legal Issues Conference, Legal
Research
Foundation, Auckland, 29 November 2013).
[24] Aotearoa New Zealand
affirmed the United Nations Declaration on the Rights of Indigenous Peoples GA
Res 61/295 (2007) (UNDRIP) in
2010. The UNDRIP recognises the importance of
protecting the collective rights of indigenous peoples and addresses the rights
to
self-determination, preservation of culture and institutions, participation
in decision-making and consultation, and rights to lands
and resources. As a
declaration rather than a convention, the UNDRIP does not have legally binding
force attached to it in international
law. However, the UNDRIP is widely viewed
as not creating new rights but rather elaborating on internationally recognised
human rights
as they apply to indigenous peoples and individuals, thus in this
way having a binding effect: see Te Rōpū Whakamana i
te Tiriti o
Waitangi | Waitangi Tribunal Whaia te Mana Motuhake | In Pursuit of
Mana Motuhake: Report on the Māori Community Development Act Claim (Wai
2417, 2015) at 34–35 and 38–44; Te Rōpū Whakamana |
Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New
Zealand Law and Policy Affecting Maori Culture and Identity — Te
Taumata
Tuatahi (Wai 262, 2011) at 42 and 233–234; and Claire Charters
“The UN Declaration on the Rights of Indigenous Peoples in New
Zealand
Courts: A Case for Cautious Optimism” in UNDRIP Implementation:
Comparative Approaches, Indigenous Voices from CANZUS — Special
Report (Centre for International Governance Innovation, 2020) 43 at
48–50. This is reflected in the right to self-determination in
art 3 being
characterised as “essential to the enjoyment of all human rights”:
Melissa Castan “DRIP Feed: The Slow
Reconstruction of Self-determination
for Indigenous Peoples” in Sarah Joseph and Adam McBeth (eds) Research
Handbook on International Human Rights Law (Edward Elgar Publishing,
Cheltenham, 2010) 492 at 499; and see also Office of the High Commissioner for
Human Rights CCPR General Comment No 12: Article 1 (Right to
Self-determination) The Right to Self-determination of Peoples (13 March
1984).
[25] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 16. Hohepa explains this as
stating that tikanga should never be watered down or lost, otherwise it would be
codified in law and left to languish in human-created laws.
[26] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 17.
[27] Te Aka Matua o te Ture |
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 28.
[28] Te Aka Matua o te Ture |
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 29.
[29] Re Reeder (Ngā
Pōtiki Stage 1 – Te Tāhuna o Rangataua) [2021] NZHC 2726 at
[48]. Dr Maxwell’s qualifications as an expert in mātauranga
Māori and his evidence were not disputed: at [46]. See also
the evidence of
Moana Jackson, cited in Jacinta Ruru and Leo Watson “An Introduction to
Māori land, Taonga and the Māori
Land Court” (paper presented to
Property Law Conference – Change, it’s inevitable!, Auckland, 28
June 2018) at
4, and referenced in Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims
about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at
17.
[30] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 16.
[31] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 16.
[32] Joseph Williams “Lex
Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New
Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 4.
[33] Joseph Williams “Lex
Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New
Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 4.
[34] Te Aka Matua o te Ture |
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 30–31.
[35] Harry Dansey “A View
of Death” in Michael King (ed) Te Ao Hurihuri: Aspects of
Maoritanga (Reed Publishing, Auckland, 1992) 105 at 109.
[36] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 13–15.
[37] Richard Benton, Alex Frame
and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References
to the Concepts and Institutions of Māori Customary Law (Victoria
University Press, Wellington, 2013) at 504.
[38] Apirana T Ngata
Rauru-nui-ā-Toi Lectures and Ngati Kahungunu Origins (Victoria
University of Wellington, Wellington, 1972) at 6, cited in Joseph Selwyn Te Rito
“Whakapapa: A framework for understanding
identity” [2007] (2) MAI
Review 1 at 1.
[39] Te Aka Matua o te Ture |
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 30. See also Nin Tomas “Maori Concepts of Rangatiratanga,
Kaitiakitanga, the Environment, and Property
Rights” in David Grinlinton
and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of
Property Rights to Meet Ecological Challenges (Martinus Nijhoff Publishers,
Leiden, 2011) 219 at 228.
[40] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal The Whanganui River Report
(Wai 167, 1999) at 39.
[41] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 11.
[42] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 19.
[43] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 18.
[44] Māori Marsden
“God, Man and Universe: A Māori View” in Michael King (ed)
Te Ao Hurihuri: The World Moves On (Hicks Smith, Wellington, 1975) at
194, as cited in Te Aka Matua o te Ture | Law Commission Māori Custom
and Values in New Zealand Law (NZLC SP9, 2001) at 33. See also the comment
from Māori Marsden in “Te Mana o Te Hiku o Te Ika” (1986),
cited in
Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Muriwhenua Land Report (Wai 45, 1997) at n 13, that “the triadic
nature of mana is important because it explains the dynamics of Māori
leadership
and the lines of accountability between leaders and their
people”, as cited in Te Aka Matua o te Ture | Law Commission Māori
Custom and Values in New Zealand Law (NZLC SP9, 2001) at 33.
[45] Māori Marsden
“God, Man and Universe: A Māori View” in Michael King (ed)
Te Ao Hurihuri: The World Moves on: Aspects of Maoritanga (Hicks Smith,
Wellington, 1975) at 191 and 194.
[46] Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World – Māori Perspectives on Justice (March 2001)
at 51. The importance of this work lies in the significant expertise of the
contributors to it, who include John Clarke
(Director, Māori –
Tāhū o te Ture | Ministry of Justice); Roka Paora, Te Ru Wharehoka and
Te Ariki Morehu (Ngā
Kaumātua Āwhina); Te Wharehuia Milroy and
Wiremu Kaa (Māori Experts); Wilson Isaac, James Johnston, John MacDonald,
Ani Mikaere, Moria Rolleston, Henare Tate, Merepeka Raukawa Tait, Iritana
Tawhiwhirangi and Betty Wark (Māori Focus Group);
and Ramari Paul, Hui
Kahu, Jason Ataera and Chappie Te Kani (Tangata Whenua Student Work
Programme).
[47] Ellis v R [2020]
NZSC Trans 19 at 5, 8, 11 and 20.
[48] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 262.
[49] Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World — Māori Perspectives on Justice
(March 2001) at 59.
[50] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 18.
[51] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 50.
[52] Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World — Māori Perspectives on Justice
(March 2001) at 52.
[53] Mason Durie “The
Application of Tapu and Noa to Risk, Safety, and Health” (paper presented
to Challenges, Choices and
Strategies, Mental Health Conference 2000,
Wellington, 16 November 2000) at 3–4, cited in Te Aka Matua o te Ture |
Law Commission
Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 37.
[54] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 36.
[55] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 36.
[56] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 54.
[57] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 35.
[58] Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World — Māori Perspectives on Justice
(March 2001) at 2–3.
[59] Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World — Māori Perspectives on Justice
(March 2001) at 67.
[60] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 31.
[61] See Ellis v R [2020]
NZSC Trans 19 at 58–59, 63 and 69–71.
[62] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report
into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and
Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.
[63] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report
into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and
Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.
[64] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report
into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and
Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.
[65] Joseph Williams “Lex
Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New
Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 4.
[66] Joseph Williams “Lex
Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New
Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 4.
[67] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 19.
[68] Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World — Māori Perspectives on Justice
(March 2001) at 151.
[69] Cleve Barlow Tikanga
Whakaaro: Key Concepts in Māori Culture (Oxford University Press,
Auckland, 1994) at 8.
[70] See discussion in Harry
Dansey “A View of Death” in Michael King (ed) Te Ao Hurihuri:
Aspects of Maoritanga (Reed Publishing, Auckland, 1992) 105 at 110.
[71] Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World – Māori Perspectives on Justice (March 2001)
at 166.
[72] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 33.
[73] Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 126.
[74] Kenneth Keith “On the
Constitution of New Zealand: An Introduction to the Foundations of the Current
Form of Government”
in Cabinet Office Cabinet Manual 2017 1 at 1.
[75] Cabinet Office Circular
“Te Tiriti o Waitangi/Treaty of Waitangi Guidance” (22 October 2019)
CO (19) 5 at [7].
[76] Te Puni Kōkiri |
Ministry of Māori Development He Tirohanga ō Kawa ki te Tiriti o
Waitangi: A Guide to the Principles of the Treaty of Waitangi as expressed by
the Courts and
the Waitangi Tribunal (2001) at 14.
[77] See for example Carwyn
Jones New Treaty, New Tradition: Reconciling New Zealand and Māori
Law (Victoria University Press, Wellington, 2016); Margaret Mutu
“Constitutional Intentions: The Treaty of Waitangi Texts”
in Malcolm
Mulholland and Veronica Tawhai (eds) Weeping Waters: The Treaty of Waitangi
and Constitutional Change (Huia Publishers, Wellington, 2010) 13; Ani
Mikaere Colonising Myths: Māori Realities — He Rukuruku
Whakaaro (Huia Publishers, Wellington, 2011); and Ned Fletcher “A
Praiseworthy Device for Amusing and Pacifying Savages? What the Framers
Meant by
the English Text of the Treaty of Waitangi” (PhD Dissertation, Waipapa
Taumata Rau | University of Auckland, 2014).
See also the Waitangi Tribunal
reports referred to in the following discussion, in particular, the discussion
in Te Rōpū
Whakamana I te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty: The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at chs 8 and
10.
[78] IH Kawharu (ed)
Waitangi: Māori and Pākehā Perspectives of the Treaty of
Waitangi (Oxford University Press, Auckland, 1989) at 319. Kawharu explained
that the term emphasised to rangatira their complete control
according to their
customs. The term has also been translated as “paramount authority”:
Margaret Mutu “Constitutional
Intentions: The Treaty of Waitangi
Texts” in Malcolm Mulholland and Veronica Tawhai (eds) Weeping Waters:
The Treaty of Waitangi and Constitutional Change (Huia Publishers,
Wellington, 2010) 13 at 19–22; and “absolute authority”: Te
Rōpū Whakamana i te Tiriti
o Waitangi | Waitangi Tribunal Whaia te
Mana Motuhake | In Pursuit of Mana Motuhake: Report on the Māori
Community Development Act Claim (Wai 2417, 2015) at 26.
[79] Article 2 also gave the
Crown an exclusive right of pre-emption over any land Māori wanted to
“alienate”.
[80] IH Kawharu (ed)
Waitangi: Māori and Pākehā Perspectives of the Treaty of
Waitangi (Oxford University Press, Auckland, 1989) at 321.
[81] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on
the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 27.
[82] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te Tiriti
| The Declaration and the Treaty: The Report on Stage 1 of the Te
Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 520.
[83] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te Tiriti
| The Declaration and the Treaty: The Report on Stage 1 of the Te
Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 521. See also Ani Mikaere
Colonising Myths: Māori Realities — He Rukuruku
Whakaaro (Huia Publishers, Wellington, 2011) at 127–128; and He
Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa
— The Independent Working Group on Constitutional
Transformation (January 2016) at 43–49.
[84] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai
45, 1997) at 114.
[85] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te Tiriti
| The Declaration and the Treaty The Report on Stage 1 of the Te Paparahi
o Te Raki Inquiry (Wai 1040, 2014) at 526–527.
[86] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Te Urewera (Wai 894, 2017) vol
1 at 139. This is reflected in s 9(1) of the Tūhoe Claims Settlement Act
2014. In 2018, the Tribunal concluded
that the Treaty applied to non-signatory
hapū as a unilateral set of promises by the Crown to respect and protect
their tino
rangatiratanga and other rights just as it would for hapū whose
leaders had signed, noting that, out of practical necessity,
all Māori
needed to engage with the Crown on the basis of the Treaty’s guarantees,
whether they had signed the Treaty
or not: Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal Te Mana Whatu Ahuru: Report on Te Rohe
Pōtae Claims — Parts I and II (Wai 898, 2018) at 188.
[87] See Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Mana Whatu Ahuru:
Report on Te Rohe Pōtae Claims — Parts I and II (Wai 898,
2018) at 130, 136, 139–140 and 146. See also Te Rōpū Whakamana i
te Tiriti o Waitangi | Waitangi Tribunal
He Whakaputanga me te Tiriti
| The Declaration and the Treaty: The Report on Stage 1 of the Te
Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 522; and Carwyn Jones New
Treaty, New Tradition: Reconciling New Zealand and Māori Law (Victoria
University Press, Wellington, 2016) at 7.
[88] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te Tiriti
| The Declaration and the Treaty: The Report on Stage 1 of the Te
Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 522.
[89] See for example Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tauranga
Moana, 1886–2006: Report on the Post-Raupatu Claims (Wai 215, 2010) at
148; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Report of The Waitangi Tribunal on The Orakei Claim (Wai 9, 1987) at 180;
and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
The Ngai Tahu Report 1991 (Wai 27, 1991) at 223. See also FM Brookfield
Waitangi and Indigenous Rights: Revolution, Law, and Legitimation
(Auckland University Press, Auckland, 1999) at 55, cited in Judith Pryor
“‘The Treaty always speaks’: Reading the
Treaty of
Waitangi/Te Tiriti O Waitangi” in Constitutions: Writing
Nations, Reading Difference (Birkbeck Law Press, Abingdon (UK), 2008) 85 at
99; and see also Ruth Ross “Te Tiriti o Waitangi: Texts and
Translations”
(1972) 6 NZJH 129 at 133. But see Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te
Tiriti | The Declaration and the Treaty: The Report on Stage 1 of the Te
Paparahi o Te Raki Inquiry (Wai 1040, 2014), where the Tribunal did not rely
on the contra proferentem doctrine in its interpretation of the Treaty:
at 522. For a detailed discussion of the application of the contra
proferentem rule by the Tribunal see Benjamin Suter “The Contra
Proferentem Rule in the Reports of the Waitangi Tribunal” (LLM Research
Paper, Te Herenga Waka | Victoria University of Wellington, 2014).
[90] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Hauora: Report on Stage One of the
Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2019) at 28. See
also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending
Rates (Wai 2540, 2017) at 21; and Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal Whaia te Mana Motuhake | In Pursuit of
Mana Motuhake: Report on the Māori Community Development Act Claim (Wai
2417, 2015) at 26.
[91] New Zealand Māori
Council Kaupapa: Te Wahanga Tuatahi (February 1983) at 5–6; Hirini
Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia
Publishers, Wellington, 2016) at 41–42 and 229; and Tāhū o te
Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 36–38. See also the discussion in He Whakaaro Here
Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa – The
Independent Working Group on Constitutional
Transformation (January 2016) at
34.
[92] See discussion in Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty: The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 524; and
see Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and
Māori Law (Victoria University Press, Wellington, 2016) at 42.
[93] Article 3 in both the
Māori and English texts conveys an undertaking of similar effect.
[94] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai
45, 1997) at 385–386.
[95] Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai
45, 1997) at 386.
[96] For example, see Ani
Mikaere Colonising Myths: Māori Realities — He Rukuruku
Whakaaro (Huia Publishers, Wellington, 2011) at 263–264. See also the
discussion in Te Rōpū Whakamana i te Tiriti o Waitangi
| Waitangi
Tribunal He Whakaputanga me te Tiriti | The Declaration and the
Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai
1040, 2014) at 348 onwards for an in-depth discussion of the texts.
[97] Chapman Tripp cited Hirini
Moko Mead Tikanga Māori: Living by Māori Values (Huia
Publishers, Wellington, 2003) at 15–16.
[98] Trish Ieong cited Mark Cox,
Fiona Stokes and Hugh Dixon Giving New Zealand: Philanthropic Funding 2014
(Tōpūtanga Tuku Aroha o Aotearoa | Philanthropy New Zealand,
December 2015) at ii.
[99] See Te Aka Matua o te Ture
| Law Commission The Treaty of Waitangi and Maori Fisheries |
Mataitai: Nga Tikanga Maori me te Tiriti o Waitangi (NZLC PP9, 1989) at
[13.5]–[13.7].
[100] See Chapters 5 and 7
[101] See Chapter 5.
[102] See Chapter 9.
[103] See Chapter 10.
[104] He Whakaaro Here
Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa — The
Independent Working Group on Constitutional Transformation (January 2016).
See also Michael and Suzanne Borrin Foundation “The Constitutional
Kōrero: Indigenous Futures and New
Zealand’s Constitution”
<www.borrinfoundation.nz>. Note also the point raised by Dr Maria Hook and
Jack Wass in
their joint submission that it would be important to clarify the
interrelationship between any new or existing conflict of law rules
governing
the relationship between tikanga and state law, discussed further in Chapter
15.
[105] See Greg Kelly “An
Inheritance Code for New Zealand” (LLM Dissertation, Te Herenga Waka |
Victoria University of Wellington,
2010) at 104 for additional legislation that
might be included in a new Act.
[106] The Commission’s
work in the 1990s had as its ultimate aim a new Succession Act drafted in plain
language that would provide
for all succession laws in one statute, including
the law regarding wills, administration and intestacies: Te Aka Matua o te Ture
| Law Commission Succession Law: Testamentary Claims — A
discussion paper (NZLC PP24, 1996) at vii. See also Greg Kelly “An
Inheritance Code for New Zealand” (LLM Dissertation, Te Herenga Waka
|
Victoria University of Wellington, 2010) at 12.
[107] See Te Aka Matua o te
Ture | Law Commission Review of Succession Law: Rights to a person’s
property on death | He arotake i te āheinga ki ngā rawa a te
tangata ka mate ana (NZLC IP46, 2021) at [1.10]–[1.17]; and Te Aka
Matua o te Ture | Law Commission Relationships and Families in Contemporary
New Zealand | He Hononga Tangata, he Hononga Whānau i Aotearoa o
Nāianei (NZLC SP22, 2017).
[108] Banks v
Goodfellow (1870) 5 LR QB 549 at 563. Cockburn CJ observed that “[t]he
law of every civilised people concedes to the owner of property
the right of
determining by his last will, either in whole or in part, to whom the effects
which he leaves behind him shall pass.”
However, he qualified this
statement by explaining that a property owner would be under a “moral
responsibility of no ordinary
importance” to make provision for
“those who are the nearest to them in kindred and who in life have been
the objects
of their affection”. Unrestricted testamentary freedom
developed in the 18th century largely from the rise of liberal individualism,
led by thinkers such as John Locke, Jeremy Bentham and John Stuart Mill: see
Rosalind F Croucher and Prue Vines Succession: Families, Property and
Death (5th ed, LexisNexis Butterworths, Chatswood (NSW), 2019) at
16–17; and Sylvia Villios and Natalie Williams “Family provision
law, adult children and the age of entitlement” [2018] AdelLawRw 11; (2018) 39 Adel L Rev 249
at 250.
[109] Te Ture Whenua Maori Act
1993, preamble.
[110] THRMOA, Chapman Tripp
and Ngā Rangahautira submitted that the exclusion of whenua Māori from
this review is unsatisfactory,
see discussion in Chapter 2.
[111] We discuss this point
below at [3.53].
[112] Succession to property
owned by Māori other than whenua Māori is determined by general
succession law: see Te Ture Whenua
Maori Act 1993, ss 100–103 and 110.
[113] See Chapter 7 for a
summary of the intestacy rules.
[114] Property (Relationships)
Act 1976, s 2 definition of “family chattels”, para (c)(i).
[115] Biddle v Pooley
[2017] NZHC 338 at [161]–[169].
[116] Submission of Paul
Tapsell.
[117] Richard Benton, Alex
Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of
References to the Concepts and Institutions of Māori Customary Law
(Victoria University Press, Wellington, 2013) at 396.
[118] Te Taura Whiri i te Reo
Māori | Māori Language Commission “taonga” He
Pātaka Kupu – te kai a te rangatira <www.hepatakakupu.nz>. This
may be translated as “An object in the possession
of a person, belonging
to a person”.
[119] Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 399.
[120] Paul Tapsell Pukaki:
A Comet Returns (Reed, Auckland, 2000) at 13.
[121] Jacinta Ruru
“Taonga and family chattels” [2004] NZLJ 297 at 298.
[122] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei:
A Report into Claims Concerning New Zealand Law and Policy Affecting Māori
Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at
54.
[123] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 46; and Jacinta Ruru
“Taonga and family chattels” [2004] NZLJ 297 at 298.
[124] Submission of Paul
Tapsell.
[125] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R81 and
[14.41]–[14.45]. At the end of this chapter, we explain why we have
excluded land.
[126] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R82.
[127] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[14.47].
[128] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[14.44].
[129] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[14.45].
[130] We discuss the
resolution of disputes in Chapters 13 and 14.
[131] Page v Page
[2001] NZHC 592, (2001) 21 FRNZ 275; Perry v West (2002) 21 FRNZ 575
(DC); Perry v West [2004] NZFLR 515 (HC); and Sydney v Sydney
[2012] NZFC 2685.
[132] Ngawaka v Ngāti
Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291 at [58].
[133] See also our
recommendations in Te Aka Matua o te Ture | Law Commission Review of the
Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at R83 and [14.59].
[134] This was also supported
by the results of the Borrin Succession Survey: see Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021).
[135] William M Patterson
Laws of New Zealand Wills (online ed) at [2].
[136] See Chapter 7.
[137] See Jacinta Ruru
“Taonga and family chattels” [2004] NZLJ 297 at 297. See also the
definition of “taonga tūturu” in the Protected Objects Act
1975, which limits “taonga
tūturu” to objects that relate to
Māori culture, history or society and were manufactured, modified, brought
into
New Zealand or used by Māori: s 2 definition of “taonga
tūturu”.
[138] See for example the
obiter comments made by Durie J in Page v Page [2001] NZHC 592, (2001) 21
FRNZ 275 at [46].
[139] Property (Relationships)
Act 1976, s 2D. In determining whether two people live together as a couple, all
the circumstances of the
relationship are to be considered, including the
matters prescribed in s 2D(2).
[140] Property (Relationships)
Act 1976, s 14A. Marriages and civil unions of three years are generally subject
to the ordinary property
division rules unless one of the special situations
outlined in ss 14–14AA apply.
[141] Jacinta Ruru
"Implications for Māori: Historical Overview" in Nicola Peart, Margaret
Briggs and Mark Henaghan (eds) Relationship Property on Death (Thomson
Reuters, Wellington, 2004) 445 at 450–451.
[142] Property (Relationships)
Act 1976, s 8.
[143] Property (Relationships)
Act 1976, s 11.
[144] Property (Relationships)
Act 1976, s 61.
[145] Property (Relationships)
Act 1976, s 62(1)(b). If the estate is small, meaning that it can be distributed
without the need for a
grant of administration, the choice must be made within
the later of six months from the date of the deceased’s death or six
months from the grant of administration in Aotearoa New Zealand (if the grant is
made within six months of the deceased’s death):
s 62(1)(a) and s 2
definition of “small estate”.
[146] Property (Relationships)
Act 1976, s 65.
[147] However, the partner can
apply under the Family Protection Act 1955 for further provision from the estate
irrespective of which
option they elect: Property (Relationships) Act 1976, s
57.
[148] Property (Relationships)
Act 1976, s 62(2), but the application for extension must be made before the
final distribution of the
estate: s 62(4).
[149] Property (Relationships)
Act 1976, s 68.
[150] The relevant grounds are
that the choice was not freely made; the surviving partner did not fully
understand the effect and implications
of the choice; since the choice was made,
the surviving partner has become aware of information relevant to the making of
the choice;
or since the choice was made, a third party has made an application
under the Law Reform (Testamentary Promises) Act 1949 or the
Family Protection
Act 1955: Property (Relationships) Act 1976, s 69(2)(a).
[151] Property (Relationships)
Act 1976, s 75(b).
[152] Property (Relationships)
Act 1976, s 76.
[153] Property (Relationships)
Act 1976, s 1N(b); and Te Aka Matua o te Ture | Law Commission Review of the
Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at [2.44]–[2.46].
[154]
(26 March 1998) 567 NZPD 7916–7925; Report
of the Working Group on Matrimonial Property and Family Protection
(Department of Justice, October 1988) at 40; and Te Aka Matua o te Ture | Law
Commission Succession Law: A Succession (Adjustment) Act (NZLC R39, 1997)
at [4] and [15].
[155] See Report of the
Working Group on Matrimonial Property and Family Protection (Department of
Justice, October 1988) at 44–45.
[156] See Matrimonial Property
Amendment Bill 1999 (109-2) (select committee report) at iv.
[157] Property (Relationships)
Act 1976, s 81.
[158] Property (Relationships)
Act 1976, s 82.
[159] Property (Relationships)
Act 1976, s 84.
[160] Property (Relationships)
Act 1976, s 85.
[161] Annie Mikaere
“Māori Women: Caught in the Contradictions of a Colonised
Reality” (1994) 2 Taumauri | Waikato L
Rev 125 at 125; and Jacinta Ruru
“Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand”
(2005) 19 IJLPF
327 at 327.
[162] See Te Aka Matua o te
Ture | Law Commission Justice: The Experiences of Māori Women |
Te Tikanga o te Ture: Te Mātauranga o ngā Wāhine Māori e pa
ana ki tēnei (NZLC R53, 1999) at 19; and Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 62.
[163] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 62; and Donna M Tai Tokerau
Durie-Hall “Māori Marriage: Traditional Marriages
and the Impact of
Pākehā Customs and the Law” in Sandra Coney (ed) Standing in
the Sunshine: A History of New Zealand Women Since They Won the Vote
(Viking, Auckland, 1993) 186 at 186–187, citing Donna Durie-Hall and Joan
Metge “Kua Tutū Te Puehu, Kia Mau”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand (Oxford University Press,
Auckland, 1992).
[164] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 62.
[165] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 59–60.
[166] Annie Mikaere
“Māori Women: Caught in the Contradictions of a Colonised
Reality” (1994) 2 Taumauri | Waikato L
Rev 125 at 125; and Jacinta Ruru
“Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand”
(2005) 19 IJLPF
327 at 330.
[167] Te Aka Matua o te Ture |
Law Commission Justice: The Experiences of Māori Women | Te
Tikanga o te Ture: Te Mātauranga o ngā Wāhine Māori e pa ana
ki tēnei (NZLC R53, 1999) at 11.
[168] Te Aka Matua o te Ture |
Law Commission Justice: The Experiences of Māori Women | Te
Tikanga o te Ture: Te Mātauranga o ngā Wāhine Māori e pa ana
ki tēnei (NZLC R53, 1999) at 14.
[169] Angela Ballara
“Wāhine Rangatira: Māori Women of Rank and their Role in the
Women’s Kotahitanga Movement of
the 1890s” (1993) 27 NZJH 127 at
133–134.
[170] Angela Ballara
“Wāhine Rangatira: Māori Women of Rank and their Role in the
Women’s Kotahitanga Movement of
the 1890s” (1993) 27 NZJH 127 at
133–134; and Jacinta Ruru “Indigenous Peoples and Family Law: Issues
in Aotearoa/New
Zealand” (2005) 19 IJLPF 327 at 330.
[171] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 20.
[172] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 59–60.
[173] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World — Māori Perspectives on Justice
(March 2001) at 30; HW Williams A Dictionary of the Maori Language (7th
ed, Government Printer, Wellington, 1971) at definition of
“whānau”; and Te Aka Matua o te Ture | Law Commission
Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at
41.
[174] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 59–60.
[175] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 60–61.
[176] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R9.
[177] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[3.73]–[3.79] and [3.123]–[3.125].
[178] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R16.
[179] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R21–R22.
[180] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R37 and
[8.20]–[8.23].
[181] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R39,
R41–R43, [8.41]–[8.45] and [8.83]–[8.95].
[182] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R4, R79
and [14.9]–[14.10].
[183] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R79–R85.
[184] See Nicola Peart
“New Zealand’s Succession Law: Subverting Reasonable
Expectations” (2008) 37 Comm L World Rev
356 at 372; and Nicola Peart
“Family Finances on Death of a Spouse or Partner” in Jessica Palmer
and others (eds) Law and Policy in Modern Family Finance: Property Division
in the 21st Century (Intersentia, Cambridge, 2017) 95 at 118.
[185] Nicola Peart “New
Zealand’s Succession Law: Subverting Reasonable Expectations” (2008)
37 Comm L World Rev 356
at 372.
[186] Property (Relationships)
Act 1976, s 89(1)(d). However, the court may grant an extension: s 89(1)(e).
[187] Property (Relationships)
Act 1976, s 89(1)(b).
[188] See discussion in Nicola
Peart (ed) Family Property (online looseleaf ed, Thomson Reuters) at
[PR89.01].
[189] Property (Relationships)
Act 1976, s 13.
[190] See generally Angela
Ballara “Wāhine Rangatira: Māori Women of Rank and their Role in
the Women’s Kotahitanga
Movement of the 1890s” (1993) 27 NZJH 127;
Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao
Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
29–30; and Te Aka Matua o te Ture | Law Commission Justice: The
Experiences of Māori Women | Te Tikanga o te Ture: Te
Mātauranga o ngā Wāhine Māori e pa ana ki tēnei
(NZLC R53, 1999).
[191] We discuss occupation
orders in Chapter 9.
[192] Section 65 of the
Property (Relationships) Act 1976 requires that the notice must be in a
prescribed form, signed and certified
by a lawyer and lodged with the
administrator of the estate or the High Court.
[193] A surviving partner
applying to be an administrator in the intestacy of their partner must certify
that they have chosen option
B: High Court Rules 2016, r 27.35(4)(a)(iv) and sch
1 form PR 3.
[194] In the Issues Paper, we
did not propose any extension to the current timeframe for making an election,
particularly because we considered
that concerns around lack of awareness and
access to information would be better addressed by changes targeted at those
issues.
[195] Around 80 per cent of
submitters to the consultation website expressed support. Most of the website
submissions did not detail the
reasons for supporting or not supporting the
proposals.
[196] The concept of ceasing
living together in the relationship is drawn from ss 2A(2), 2AB(2) and 2D(4) of
the Property (Relationships)
Act 1976, which define when a marriage, civil union
and de facto relationship end for the purposes of the PRA.
[197] Section 24(1) of the
Property (Relationships) Act 1976 provides that an application must be made
within 12 months after a marriage
or civil union has been dissolved and within
three years after a de facto relationship has ended.
[198] We note that, in
response to the Issues Paper in the PRA review, the Human Rights Commission
submitted that consideration should
be given to dealing with tikanga issues in a
separate part of the PRA: see Te Aka Matua o te Ture | Law Commission Review
of the Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at [14.7].
[199] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[14.8].
[200] In Jacinta Ruru
“Kua tutū te puehu, kia mau: Māori aspirations and family law
policy” in Mark Henaghan and
Bill Atkin (eds) Family Law Policy in New
Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 71–72, Ruru
submitted:
At present there is no pressure from Māori to have marriage in
accordance with Māori custom reinstated as a legal form.
However with the
wider revival of tikanga Māori occurring throughout the country, more
couples may decide to marry according
to custom, rather than the law, and wish
for their unions to be described as Māori customary marriages, rather than
de facto
or civil unions.
[201] See Chapter 10 for a
discussion of contracting out agreements.
[202] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at [2.46]
and [2.51].
[203] There was no
statistically significant difference between the views of Māori.
Seventy-four per cent of Māori respondents
agreed or strongly agreed that
the wife should be entitled to a half share of the home: Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [149].
[204] For example, we have
received data from the Probate Registry of the High Court that shows that, in
2019, out of 18,397 applications
for probate and letters of administration, 16
surviving partners filed notices of electing option A compared with 721 who
filed notices
of option B: email from Tāhū o te Ture | Ministry of
Justice to Te Aka Matua o te Ture | Law Commission regarding data
on
applications for probate and letters of administration (11 August 2020); and
email from Tāhū o te Ture | Ministry of
Justice to Te Aka Matua o te
Ture | Law Commission regarding data on probate applications (24 August 2020).
Note that a partner will
only file notices with the Registry if administration
of the estate has not yet been granted. However, it is a strong indication
that
elections of option A are relatively rare.
[205] See Property
(Relationships) Act 1976, s 76(3).
[206] It would also include
repealing the consequential provisions in ss 66-70 and other consequential
amendments, including to ss 61–64
and 71–72 of the Property
(Relationships) Act 1976.
[207] This would be subject to
the rules regarding small estates and extensions discussed in Chapter 12.
[208] See Administration Act
1969, s 48.
[209] High Court Rules 2016,
sch 1 form PR 3.
[210] This approach is taken
in Manitoba: The Family Property Act CCSM 1987 c F25, s 39. More recently, the
Law Reform Commission of Nova
Scotia recommended that Nova Scotia law be amended
to take a top-up approach: Law Reform Commission of Nova Scotia Division of
Family Property (Final Report, 2017) at 254–255.
[211] In the context of
separation, a recent survey found that 71 per cent of participants had their
assets and/or debts valued by a professional:
Megan Gollop and others
Relationship Property Division in New Zealand: The Experiences of Separated
People (Te Whare Wānanga o Ōtākou | University of Otago,
descriptive research report, October 2021) at 49.
[212] See Wills Act 2007, ss
28–29; and Nicola Peart (ed) Family Property (online looseleaf ed,
Thomson Reuters) at [PR76.03].
[213] We note that, in
Manitoba, where a top-up approach is applied, there is no discretion for the
court to substitute gifts to a surviving
partner under the will with alternative
property: The Family Property Act CCSM 1987 c F25, ss 41 and 43.
[214] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[6.9].
[215] Many of these reasons
are those that we presented for favouring the three-year qualifying period in
the final report of the PRA
review: see Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at [6.39].
[216] Ian Binnie and others
Relationship Property Division in New Zealand: Public Attitudes and Values
— A General Population Survey 2018 (Te Whare Wānanga o
Ōtākou | University of Otago, technical research report to the Michael
and Suzanne Borrin Foundation,
October 2018) at [146] and figures 3 and 4. When
asked how long they thought couples should have to live together, 32 per cent of
respondents favoured a length of time less than three years, 38 per cent said it
should be three years and 29 per cent favoured a
length of time greater than
three years.
[217] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R26.
[218] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R29 and
[6.64].
[219] Bill Atkin “Family
property” in Mark Henaghan and Bill Atkin (eds) Family Law Policy in
New Zealand (5th ed, LexisNexis, Wellington, 2020) 193 at 201.
[220] Ian Binnie and others
Relationship Property Division in New Zealand: Public Attitudes and Values
— A General Population Survey 2018 (Te Whare Wānanga o
Ōtākou | University of Otago, technical research report to the Michael
and Suzanne Borrin Foundation,
October 2018) at figure 1.
[221] Ian Binnie and others
Relationship Property Division in New Zealand: Public Attitudes and Values
— A General Population Survey 2018 (Te Whare Wānanga o
Ōtākou | University of Otago, technical research report to the Michael
and Suzanne Borrin Foundation,
October 2018) at [140]–[141].
[222] Differential treatment
of people or groups on a prohibited ground of discrimination is potentially
discriminatory under human rights
law but only if it treats people in comparable
situations differently: Ministry of Health v Atkinson [2012] NZCA 184,
[2012] 3 NZLR 456 at [55] and [109], applied in Child Poverty Action Group
Inc v Attorney-General [2013] NZCA 402, [2013] 3 NZLR 729 at [43].
[223] See Superu Families
and Whānau Status Report 2014: Towards Measuring the Wellbeing of Families
and Whānau (Kōmihana ā Whānau | Families Commission,
June 2014) at 164. See also Te Aka Matua o te Ture | Law Commission
Relationships and Families in Contemporary New Zealand | He Hononga
Tangata, he Hononga Whānau i Aotearoa o Nāianei (NZLC SP22, 2017)
at 17–18.
[224] Property (Relationships)
Act 1976, ss 2B–2BAA.
[225] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[6.61].
[226] The concept of ceasing
living together in the relationship is drawn from ss 2A(2), 2AB(2) and 2D(4) of
the Property (Relationships)
Act 1976, which define when a marriage, civil union
and de facto relationship end for the purposes of the PRA.
[227] A recent survey of
separated partners found that 84 per cent began the process of dividing their
relationship property within one
year of separation, with 49 per cent beginning
at separation. Over half (58 per cent) settled in less than one year and the
participants
who said it took more than one year to settle generally thought
this was an unreasonable length of time: Megan Gollop and others
Relationship
Property Division in New Zealand: The Experiences of Separated People (Te
Whare Wānanga o Ōtākou | University of Otago, descriptive
research report, October 2021) at 28–30.
[228] Family Proceedings Act
1980, s 39(2). We recognise the difference between this proposal and s 24 of the
Property (Relationships)
Act 1976, which provides that an application must be
made under the Act no later than three years after a de facto relationship has
ended.
[229] These factors are based
on the principles frequently applied by the courts when deciding whether to
extend the time for bringing
an application under s 24(2) of the Property
(Relationships) Act 1976. See Beuker v Beuker (1977) 1 MPC 20 (SC) at
21.
[230] See Property
(Relationships) Act 1976, s 10D.
[231] Property (Relationships)
Act 1976, s 24(1).
[232] Property (Relationships)
Act 1976, ss 52A–52B. Some multi-partner relationships may be captured by
the contemporaneous relationships
provisions, although others will not. See
discussion on multi-partner relationships in Chapter 16.
[233] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R33–R34, [7.34]–[7.48] and [7.55]–[7.61].
[234] This is a different
concept to contributions to the relationship, which are defined in s 18 of the
Property (Relationships) Act
1976.
[235] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[3.18]–[3.21] and [3.66]–[3.67].
[236] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R34.
[237] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R9–R16 and ch 3.
[238] There should continue to
be special provision for family homes that are homesteads, in accordance with
R10 of Te Aka Matua o te
Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019).
[239] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R41–R42.
[240] Testator’s Family
Maintenance Act 1900, s 2. The Act contained a proviso empowering the court to
attach conditions to or to
refuse an order where the applicant’s
“character or conduct is such as in the opinion of the Court to disentitle
him
or her”.
[241] Rosalind Atherton
“New Zealand’s Testator’s Family Maintenance Act of 1900
– The Stouts, the Women’s
Movement and Political Compromise”
[1990] OtaLawRw 2; (1990) 7 Otago LR 202 at 216.
[242] Mary Foley “The
Right of Independent Adult Children to Receive Testamentary Provision: A
Statutory Interpretation and Philosophical
Analysis of the New Zealand
Position” (PhD Dissertation, Te Whare Wānanga o Ōtākou |
University of Otago, 2011)
at 32.
[243] Family Protection Act
1908.
[244] Statutes Amendment Act
1936, s 26.
[245] Statutes Amendment Act
1943, s 14.
[246] Statutes Amendment Act
1947, s 15
[247] Statutes Amendment Act
1947, s 15
[248] Statutes Amendment Act
1939, s 22.
[249] Family Protection Act
1955, s 3.
[250] When considering a
grandchild’s application, a court will have regard to any provision to the
grandchild’s parents:
Family Protection Act 1955, s 3(2).
[251] Family Protection Act
1955, s 4.
[252] Re Rush, Rush v
Rush (1901) 20 NZLR 249 (SC) at 253, drawing parallels with the Destitute
Persons Act 1894; Laird v Laird [1903] NZGazLawRp 77; (1903) 5 GLR 466; and Plimmer v
Plimmer [1906] NZGazLawRp 135; (1906) 9 GLR 10 (CA).
[253] Re Allardice,
Allardice v Allardice (1910) 29 NZLR 959 (CA).
[254] Re Allardice,
Allardice v Allardice (1910) 29 NZLR 959 (CA) at 972–973.
[255] Little v Angus
[1981] 1 NZLR 126 (CA) at 127; and Coates v National Trustees Executors
& Agency Co Ltd [1956] HCA 23, (1956) 95 CLR 494 at 526 and 527. See
also Talbot v Talbot [2018] NZCA 507, [2018] NZFLR 128 at [40].
[256] See discussion in Bill
Patterson Law of Family Protection and Testamentary Promises (5th ed,
LexisNexis, Wellington, 2021) at 21–23; and Welsh v Mulcock [1923] NZGazLawRp 158; [1924]
NZLR 673 (CA).
[257] Willaims v Aucutt
[2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [52].
[258] See the list of
principles helpfully summarised in Vincent v Lewis [2006] NZFLR 812 (HC)
at [81].
[259] Little v Angus
[1981] 1 NZLR 126 (CA) at 127.
[260] Re Leonard [1985]
2 NZLR 88 (CA) at 92; and Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479 (CA) at
[37].
[261] Re Leonard [1985]
2 NZLR 88 (CA) at 92.
[262] Re Shirley
(deceased) CA155/85, 6 July 1987.
[263] Williams v Aucutt
[2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [70].
[264] Flathaug v Weaver
[2003] NZCA 343; [2003] NZFLR 730 (CA) at [32].
[265] Williams v Aucutt
[2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [52].
[266] Williams v Aucutt
[2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [52] and [55].
[267] Little v Angus
[1981] 1 NZLR 126 (CA) at 127; and Henry v Henry [2007] NZCA 42, [2007]
NZFLR 640 at [55]–[56].
[268] Fisher v Kirby
[2012] NZCA 310, [2013] NZFLR 463 at [120].
[269] Fisher v Kirby
[2012] NZCA 310, [2013] NZFLR 463 at [120].
[270] Te Aka Matua o te Ture |
Law Commission’s review of FPA cases published on Westlaw and LexisNexis
in the 10-year period ending
18 November 2019 found that, of the 116 cases heard
and decided (excluding appeals), 93 cases (80 per cent) involved a claim by one
or more adult child, none of whom were dependent on the deceased immediately
before death. In 40 of the 93 cases (43 per cent), the
court found that none of
the child claimants were in financial need, and in an additional five cases, the
court found that only some
of the child claimants were in financial need. Awards
were made in 28 of the 45 cases, and a court order (by consent) approved a
settlement in an additional case.
[271] Te Ture Whenua Maori Act
1993, s 106(3).
[272] Family Protection Act
1955, s 3A(2A).
[273] Te Ture Whenua Maori Act
1993, ss 114A(3) and 115(1).
[274] Te Ture Whenua Maori Act
1993, s 114A(3).
[275] Te Ture Whenua Maori Act
1993, s 115(3).
[276] Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern
New Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 23.
[277] Joan Metge
“Succession Law: Background Issues Relating to Tikanga Maori” (paper
prepared for Te Aka Matua o te Ture
| Law Commission, 1994) at 2–4; Hirini
Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia
Publishers, Wellington, 2016) at 32–33; Te Aka Matua o te Ture | Law
Commission The Taking into Account of Te Ao Maori in Relation to Reform of
the Law of Succession (NZLC MP6, 1996) at 20–21; and Jacinta Ruru
“Kua tutū te puehu, kia mau: Māori aspirations and family law
policy”
in Mark Henaghan and Bill Atkin (eds) Family Law Policy in New
Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 60.
[278] Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern
New Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 4; and Jacinta
Ruru “Kua tutū te puehu, kia mau: Māori aspirations and family
law policy”
in Mark Henaghan and Bill Atkin (eds) Family Law Policy in
New Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 60.
[279] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 20.
[280] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 20 (emphasis removed).
[281] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 61.
[282] Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern
New Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 23.
[283] Te Aka Matua o te Ture |
Law Commission The Taking into Account of Te Ao Maori in Relation to Reform
of the Law of Succession (NZLC MP6, 1996) at 20.
[284] If one person errs, the
collective has erred.
[285] Ranginui Walker Ka
Whawhai Tonu Matou: Struggle Without End (Penguin Books, Auckland, 1990) at
64; and Puao-Te-Ata-Tu (day break): The Report of the Ministerial Advisory
Committee on a Maori Perspective for the Department of Social Welfare
(September 1988) at 29–30 and 74–75.
[286] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 59–60.
[287] Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in New Zealand
(5th ed, LexisNexis, Wellington, 2020) 57 at 59–60.
[288] The term
“whāngai” is also the verb “to feed”. Some
hapū prefer other terms such as “atawhai”
or
“taurima” to refer to the practice of caring for a child other than
a birth child and there are variances about the
nature of the relationship that
these terms denote: see Professor Milroy’s explanation in Hohua
— Estate of Tangi Biddle (2001) 10 Rotorua Appellate MB 43
(10 APRO 43); and Waihoroi Shortland’s explanation in Te
Rōpū Whakamana i te Tiriti
o Waitangi | Waitangi Tribunal He
Pāharakeke, He Rito Whakakīkinga Whāruarua: Oranga Tamariki
Urgent Inquiry (Wai 2915, 2021) at 15. For discussion of whāngai
generally, see Merata Kawharu and Erica Newman “Whakapaparanga: Social
Structure, Leadership and Whāngai” in Michael Reilly and others (eds)
Te Kōparapara: An Introduction to the Māori World (Auckland
University Press, Auckland, 2018) 48 at 59–63; Geo Graham “Whangai
Tamariki” (1948) 57 Journal of the
Polynesian Society 268; Mihiata Pirini
“The Māori Land Court: Exploring the Space between Law, Design, and
Kaupapa Māori”
(LLM Dissertation, Te Whare Wānanga o
Ōtākou | University of Otago, 2020) at 18–21; Michael Sharp
“Māori
Estates: Wills” in Wills and Succession (online
looseleaf ed, LexisNexis) at [16.12]; and Joseph Williams “Lex Aotearoa:
An Heroic Attempt to Map the Māori Dimension
in Modern New Zealand
Law” (2013) 21 Taumauri | Waikato L Rev 1 at 5.
[289] Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern
New Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 5.
[290] Te Aka Matua o te Ture |
Law Commission Adoption and Its Alternatives: A Different Approach and a New
Framework (NZLC R65, 2000) at 73.
[291] Social Policy Agency,
Department of Social Welfare Review of Adoption Law: Maori Adoption
– A Consultation Document (February 1993) at [54] and [65].
[292] Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern
New Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 5.
[293] Merata Kawharu and Erica
Newman “Whakapaparanga: Social Structure, Leadership and
Whāngai” in Michael Reilly and
others (eds) Te Kōparapara: An
Introduction to the Māori World (Auckland University Press, Auckland,
2018) 48 at 59–60.
[294] See for example Hohua
— Estate of Tangi Biddle (2001) 10 Rotorua Appellate MB 43
(10 APRO 43); Pomare — Estate of Peter Here Pomare
(2015) 103 Taitokerau MB 95 (103 TTK 95); and Retemeyer v Loloa
— Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129
TTK 288).
[295] Re Green
(dec’d); Green v Robson [1994] NZHC 1447; [1995] NZFLR 330 (HC) at 334. It is also
helpful to note the history of how the Family Protection Act 1955 has been
applied to Māori. In 1909 Parliament
enacted the Native Land Act 1909,
which removed Māori estates from the scope of the Family Protection
Act’s predecessor legislation. Instead, the Native
Land Court was given
jurisdiction to make adequate provision for the proper maintenance and support
for the widow, children and grandchildren
of a Māori person who had made a
will: Native Land Act 1909, s 141. The Family Protection Act 1955 was made
applicable to Māori estates in 1967: Maori Affairs Amendment Act 1967, s
80.
[296] Re Stubbing
[1990] 1 NZLR 428 (HC).
[297] Re Green
(dec’d); Green v Robson [1994] NZHC 1447; [1995] NZFLR 330 (HC) at 334–335; and
Marino v Macey [2013] NZHC 2191 at [31]–[32].
[298] Koroheke v Te Whau
[2020] NZHC 863.
[299] Re Ham [1990] NZCA 32; (1990) 6
FRNZ 158 (CA) at 162.
[300] Koroheke v Te Whau
[2020] NZHC 863 at [125].
[301] van Selm v van
Selm [2015] NZFC 3242, [2015] NZFLR 693.
[302] Ormsby v van Selm
[2015] NZHC 2822.
[303] Keelan v Peach
[2002] NZCA 296; [2003] 1 NZLR 589 (CA) at [43]. However, the most recent amendments to TTWMA
include an amendment that te Kooti Whenua Māori | Māori Land Court may
determine
whether someone is a whāngai for the purposes of a claim under
the FPA that relates to Māori freehold land: see Te Ture
Whenua Maori Act
1993, s 115.
[304] Re Green
(dec’d); Green v Robson [1994] NZHC 1447; [1995] NZFLR 330 (HC).
[305] Re Green
(dec’d); Green v Robson [1994] NZHC 1447; [1995] NZFLR 330 (HC) at 334–335.
[306] Richard Sutton and
Nicola Peart “Testamentary Claims by Adult Children — The Agony of
the ‘Wise and Just Testator’”
[2003] OtaLawRw 6; (2003) 10 Otago L Rev 385 at
408.
[307] In the 10-year period
ending 18 November 2019, there were 32 appeals published on Westlaw NZ and
LexisAdvance that inquired into
awards under the FPA. Twelve (37.5 per cent) of
these appeals were successful and resulted in changes to the awards made,
increasing
or decreasing the award in the first instance or in some cases
reinstating the will. A 13th case, George v Blomfield [2017] NZFC 7553,
was a rehearing rather than an appeal but also resulted in an increase in the
award made.
[308] John Caldwell
“Family protection claims by adult children: what is going on?”
(2008) 6 NZFLJ 4 at 4. See also Mary Foley “The Right of Independent Adult
Children to Receive Testamentary Provision: A Statutory Interpretation
and
Philosophical Analysis of the New Zealand Position” (PhD Dissertation, Te
Whare Wānanga o Ōtākou | University
of Otago, 2011) at 84; and
Greg Kelly “An Inheritance Code for New Zealand” (LLM Dissertation,
Te Herenga Waka | Victoria
University of Wellington, 2010) at 19.
[309] John Caldwell
“Family protection claims by adult children: what is going on?”
(2008) 6 NZFLJ 4. See also Nicola Peart “Awards for children under the
Family Protection Act” (1995) 1 BFLJ 224.
[310] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure
1.
[311] John Caldwell
“Family protection claims by adult children: what is going on?”
(2008) 6 NZFLJ 4 at 9.
[312] In the June 2020
quarter, the median weekly income for disabled people was $402 compared to $713
for non-disabled people: Tatauranga
Aotearoa | Stats NZ “Labour market
statistics (disability): June 2020 quarter” (26 August 2020)
<www.stats.govt.nz>.
[313] Juliet Moses and Nicola
Peart “Reforming Succession Law” (paper presented to NZLS Trusts
Conference — 2021 A Trust
Odyssey, Wellington, 19 October 2021) at 18.
[314] Submissions from Te
Hunga Rōia Māori o Aotearoa and Chapman Tripp.
[315] Legislation Design and
Advisory Committee Legislation Guidelines: 2021 Edition (September 2021)
at 15.
[316] Legislation Design and
Advisory Committee Legislation Guidelines: 2021 Edition (September 2021)
at 9–10.
[317] Ross Carter Burrows
and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015)
at 534.
[318] Ross Carter Burrows
and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015)
at 539.
[319] These submitters
included leading practitioners such as Stephen McCarthy QC, Bill Patterson,
Chris Kelly and NZLS.
[320] Te Aka Matua o te Ture |
Law Commission Succession Law: A Succession (Adjustment) Act (NZLC R39,
1997) at [33]–[35].
[321] For example, the Court
of Appeal in Re Ham [1990] NZCA 32; (1990) 6 FRNZ 158 (CA) at 162 referred to the need to
“pay regard to the strong attachment of the Maori to the land and to
closely held deeply felt
feelings within the family in that respect.” In
Koroheke v Te Whau [2020] NZHC 863 at [101], the High Court accepted that
an assessment of the deceased’s moral duty must take into account the
deceased’s own perspectives
and value system. However, at
[120]–[122], the Court held the Family Court had erred by giving too much
weight to the deceased’s
personal preferences that land be retained in the
family for whānau purposes.
[322] Re Stubbing
[1990] 1 NZLR 428 (HC) at 437, recently cited in Koroheke v Te Whau
[2020] NZHC 863 at [123].
[323] As used in several other
jurisdictions, particularly civil law jurisdictions.
[324] See for example
Louisiana Civil Code, CC 1621, arts 1621–1622; German Civil Code, §
2339; Spanish Civil Code, art 853.2;
and the Civil Code of Catalonia, Book IV.
See also Esther Arroyo I Amayuelas and Esther Farnós Amorós
“Kinship
Bonds and Emotional Ties: Lack of a Family Relationship as Ground
for Disinheritance” (2016) 24 European Review of Private Law 203 at
207–208.
[325] Family provision awards
should also replace rights a partner may have to receive maintenance under the
Family Proceedings Act 1980.
In a recent case, Guzman v Estate of Osborne
[2020] NZFC 1983, [2020] NZFLR 142, the Family Court held it had jurisdiction to
order maintenance against the estate of a deceased partner under s 70 because
the de
facto relationship ended on death, even though the partners had not
separated. Note the authors of Family Property rightly question this
interpretation of s 70 of the Family Proceedings Act 1980: Nicola Peart (ed)
Family Law – Family Property (online looseleaf ed, Thomson Reuters)
at [FA70.01].
[326] For a description of the
theory of the family joint venture see Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at [2.43]–[2.48].
[327] Property (Relationships)
Act 1976, s 1N(c) and s 15.
[328] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[10.4]–[10.9].
[329] In assessing what
provision the deceased has made for their partner, the court should take into
account the partner’s entitlements
under the deceased’s will or
their entitlements in the intestacy, as the case applies. The court should also
take into account
the deceased’s property that has become available to the
surviving partner on the deceased’s death, such as joint tenancy
property
accruing to the partner by survivorship. Additionally, we would expect provision
available from a trust would be relevant,
either to whether the deceased has
made adequate provision to the partner or in assessing the resources of the
partner: see Flathaug v Weaver [2003] NZCA 343; [2003] NZFLR 730 (CA) at [36]; and
Wylie v Wylie [2003] NZCA 99; (2003) 23 FRNZ 156 (CA) at [26]–[28].
[330] Re Rush, Rush v
Rush (1901) 20 NZLR 249 (SC); and Re Z (deceased) [1979] 2 NZLR
495.
[331] See Bill Atkin and Bill
Patterson Laws of New Zealand Family Protection and other Family Property
Arrangements (online ed) at [32]; and Bill Patterson Law of Family Protection
and Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at 146,
citing Re Allen (Deceased), Allen v Manchester [1921] NZGazLawRp 155; [1922] NZLR 218 (SC);
Re Short (Deceased), Short v Guardian Trust & Executors Co of New Zealand
Ltd [1954] NZLR 1149 (SC) at 1152; Re Kallil (Deceased), Kallil v
Koorey [1957] NZLR 31 (SC); and Re Kallil (Deceased), Kallil v Koorey
[1957] NZLR 31 (CA) at 37.
[332] Nicola Peart (ed)
Family Law – Family Property (online looseleaf ed, Thomson Reuters)
at [FP4.07(1)(b)]; and Bill Patterson Law of Family Protection and
Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at
152–153.
[333] Re McNaughton
(deceased) [1976] 2 NZLR 538 (SC); M v L [2005] NZFLR 281 (FC);
and Matthews v Phochai [2020] NZHC 3455 at [45].
[334] Re Cunningham
(Deceased) Cunningham v Cunningham [1936] NZLR s 69 (SC) at 71, cited in
Bill Patterson Law of Family Protection and Testamentary Promises (5th
ed, LexisNexis, Wellington, 2021) at 150.
[335] Matthews v Phochai
[2020] NZHC 3455 at [46].
[336] Where the deceased is
survived by more than one partner, each partner may be eligible to make a family
provision claim provided
they were in a qualifying relationship with the
deceased. For further discussion on contemporaneous and multi-partner
relationships
see Chapters 4 and 16.
[337] The rules applying to de
facto relationships would include a presumption that two people are in a
qualifying de facto relationship
if they have maintained a common household for
a period of at least three years: see Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at R26.
[338] See s 13 of the Family
Protection Act 1955, which requires the court to disregard any benefit under pt
2 of the Social Security
Act 1938 (other than a superannuation benefit, a
miner’s benefit or a family benefit). The courts have taken a similar
approach
to benefits outside the Social Security Act such as residential care
subsidies: see Re Toomey (1995) 13 FRNZ 481 (DC); and
B v New Zealand Guardian Trust FC Rotorua
FAM-2005-063-736, 20 April 2009.
[339] The possibility of
losing eligibility for state benefits will be something for a surviving partner
to consider when deciding to
make a claim. In Chapter 16, we recommend that a
person should not lose entitlements to state benefits because of a decision not
to pursue a claim they may have under the new Act.
[340] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[10.4]–[10.9].
[341] For example, far more
notices of option B than option A are filed with the High Court each year. In
2019, out of 18,397 applications
for probate and letters of administration, 16
surviving partners filed notices of electing option A compared with 721 who
filed notices
of option B: email from Tāhū o te Ture | Ministry of
Justice to Te Aka Matua o te Ture | Law Commission regarding data
on
applications for probate and letters of administration (11 August 2020); and
email from Tāhū o te Ture | Ministry of
Justice to Te Aka Matua o te
Ture | Law Commission regarding data on probate applications (24 August 2020).
Note that a partner will
only file notices with the Registry if administration
of the estate has not yet been granted. However, it is a strong indication
that
elections of option A are relatively rare.
[342] In the year ending March
2020, four in every five deaths were people aged 65 years and older and the
median age at death was 80.6
years (78.1 for men and 83.4 for women): Tatauranga
Aotearoa | Stats NZ “Births and deaths: Year ended March 2020 —
Infoshare
tables” (18 May 2020) <www.stats.govt.nz>.
[343] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[10.138].
[344] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R55 and
[10.115]–[10.121]. Note also the recommendation that FISAs replace rights
to maintenance under
the Family Proceedings Act 1980: at R50. Our conclusion
here that FISAs in place before death continue to be payable should substitute
any ability to enforce a maintenance order against a deceased partner’s
estate.
[345] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at [10.117] for the list.
[346] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure
11.
[347] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [136].
[348] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [142].
[349] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [143].
[350] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure 7
and [145].
[351] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure 7
and [145].
[352] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure
12.
[353] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [145].
[354] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure
1.
[355] We note the Government
is considering customary adoption in its review of adoption laws and may wish to
consider this point further.
See Tāhū o te Ture | Ministry of Justice
Adoption in Aotearoa New Zealand: Discussion document (18 June 2021)
29-31.
[356] Adoption Act 1955, s
16(2)(b).
[357] See Tāhū o te
Ture | Ministry of Justice Adoption in Aotearoa New Zealand: Discussion
document (18 June 2021).
[358] Nicola Peart (ed)
Family Law — Family Property (online looseleaf ed, Thomson
Reuters) at [FP3.03(4)], citing Edwards v Brown [1999] NZFLR 279 (FC).
See also s 2(1) of the Administration Act 1969, which provides that a child
living at the death of any person includes a child who
is conceived but not born
at the death of the deceased but is subsequently born alive. Compare however
Wood-Luxford v Wood [2013] NZSC 153, [2014] 1 NZLR 451, where the Supreme
Court held that an unborn stepchild in utero at the time of the deceased’s
marriage to the child’s
mother was not “living at the date” of
the marriage.
[359] In addition, there are
issues arising relating to the status of the child’s parenthood. Under the
Status of Children Act 1969,
a deceased partner is unlikely to be considered the
“partner” of the surviving partner for the purposes of the Act
because
“partner” and “partnered woman” are defined in
the present tense: see s 14; and Nicola Peart “Life
Beyond Death:
Regulating Posthumous Reproduction in New Zealand” (2015) 46 VUWLR 725 at
742. If a deceased’s eggs or sperm are not considered to be the gametes of
the woman’s partner, the Act deems that
the deceased will not be
considered the parent of the child for any purpose: at ss 21–22.
[360] Advisory Committee on
Assisted Reproductive Technology (ACART) Posthumous Reproduction: A review of
the current Guidelines for the Storage, Use, and Disposal of Sperm from a
Deceased Man to take into account gametes and embryos (Manatū Hauora
| Ministry of Health, 3 July 2018); and Advisory Committee on Assisted
Reproductive Technology (ACART) Proposed Guidelines for the Posthumous Use of
Gametes, Reproductive Tissue and Stored Embryos: Stage two consultation
document (Manatū Hauora | Ministry of Health, July 2020).
[361] Advisory Committee on
Assisted Reproductive Technology (ACART) Proposed Guidelines for the
Posthumous Use of Gametes, Reproductive Tissue and Stored Embryos: Stage two
consultation document (Manatū Hauora | Ministry of Health, July 2020)
at [82]–[83].
[362] Te Aka Matua o te Ture |
Law Commission Te Kōpū Whāngai: He Arotake | Review of
Surrogacy (NZLC IP47, 2021) at [5.21].
[363] See Chapter 12 where
limitation periods are discussed.
[364] Advisory Committee on
Assisted Reproductive Technology (ACART) Proposed Guidelines for the
Posthumous Use of Gametes, Reproductive Tissue and Stored Embryos: Stage two
consultation document (Manatū Hauora | Ministry of Health, July 2020)
at 41.
[365] This suggestion is based
on the suggestion NZLS made in its submission that the basis for claims should
be reformulated into two
concepts: financial support and recognition.
[366] We have drawn
considerable assistance from Chris Kelly’s submission in formulating this
list of factors.
[367] Anti-avoidance is
discussed in Chapter 8.
[368] See s 3(2) of the Family
Protection Act 1955.
[369] This follows the general
approach taken under s 13 of the Family Protection Act 1955. See Re Hollick
(deceased) HC Christchurch CP57/87, 18 July 1990 at 27.
[370] See case law cited at
[5.8] above.
[371] The United Nations
Convention on the Rights of the Child, 1577 UNTS 3 (opened for signature 20
November 1989, entered into force 2 September 1990) sets out basic rights of
children, including the right
to have their “best interests” treated
as a “primary consideration” in actions concerning them: art
3(1).
[372] In our case review of
116 cases over a 10-year period ending 18 November 2019, 10 (8.62 per cent)
applications were brought by grandchildren,
only two of whom were infants. In
three further cases, grandchildren joined an application brought by another
party. In total, 13
cases (11.2 per cent) involved grandchildren but they mainly
concerned adult grandchildren.
[373] Data obtained from Stats
NZ’s Infoshare platform shows that this is the case for marriage and home
ownership, but the data
is less clear in respect of the average age of having a
first child or entering fulltime work: Tatauranga Aotearoa | Stats NZ
“Marriages,
civil unions, and divorces: Year ended December 2018” (3
May 2019) <www.stats.govt.nz>; Alan Bentley “Homeownership
in New
Zealand: Trends over time and generations” (paper presented to New Zealand
Population Conference, Wellington, 20 June
2019) at 14; and Tatauranga Aotearoa
| Stats NZ “Births and deaths: Year ended December 2019” (19
February 2020) <www.stats.govt.nz>.
Differences in demographics such as
ethnicity and socio-economic status may also have a significant impact.
[374] The bulk of this
research is centred in the criminal justice arena: see for example Peter
Gluckman It’s never too early, never too late: A discussion paper on
preventing youth offending in New Zealand (Office of the Prime
Minister’s Chief Science Advisor, 12 June 2018) at 13.
[375] Student Allowances
Regulations 1998, reg 4. This applies to students who are single and without a
supported child or children.
[376] Oranga Tamariki Act
1989, ss 386AAA and 386AAD. A young person under that Act may also be entitled
to advice or assistance up to
25 years: ss 386A–386B and 447(1)(cc) and
(da).
[377] For example, in
Victoria, a child’s eligibility is extended to 25 years if they are in
full-time education: Administration and Probate Act 1958 (Vic), s 90 definition
of “eligible person”. Alberta makes a similar distinction for
children up to the age of 22: Wills and Succession
Act SA 2010 c W-12.2, s
72(b)(v). The Scottish Law Commission proposed an option that dependent children
should be entitled to claim
from their deceased parent’s estate where the
parent owed an obligation of aliment immediately before death. This was
therefore
applicable to those aged under 18 years or under 25 years if engaging
in higher education: see Scottish Law Commission Report on Succession
(Scot Law Com No 215, 2009) at [3.67]–[3.70]; and Family Law
(Scotland) Act 1985.
[378] Section 28(3) of the
Draft Succession (Adjustment) Act in Te Aka Matua o te Ture | Law Commission
Succession Law: A Succession (Adjustment) Act (NZLC R39, 1997) at 86.
[379] The court may, for
example, order that a trust is established in favour of the child.
[380] We note the proceedings
in A v D [2019] NZHC 992, [2019] NZFLR 105 currently before the courts.
In that case, the adult children of the deceased alleged their father had abused
them while they were
minors under his care. Three years before his death, the
deceased settled most of his property on trust. The evidence was clear that
the
deceased’s intention was to prefer his new partner over the claims of his
children. The children argued their father was
in breach of fiduciary duties to
protect them from abuse and to protect their economic interests. The High Court
refused to strike
out the claim. The substantive claim has since been heard by
the High Court and, at the time of writing, judgment has not been issued.
In our
view, the case stands on its own facts. The claimants have invoked fiduciary law
in the context of a specific scenario where
serious abuse is alleged against a
parent and that parent has taken deliberate steps to remove property from the
reach of those children.
[381] See for example Re
Green (dec’d); Green v Robson [1994] NZHC 1447; [1995] NZFLR 330 (HC); and Marino v
Macey [2013] NZHC 2191. Note s 106 of Te Ture Whenua Maori Act 1993 prevents
the court from making orders under the Family Protection Act 1955 that have
the
effect of alienating any beneficial interest in Maori freehold land to any
person other than a child or grandchild of the deceased.
[382] Family Protection Act
1955, s 3A.
[383] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure
11.
[384] Administration and
Probate Act 1958 (Vic), s 90 definition of “eligible person”; Wills
and Succession Act SA 2010 c W-12.2, s 72(b)(iv) definition of “family
member”;
The Dependants Relief Act CCSM 1990 c D37, s 1 definition of
“dependant”; The Dependants’ Relief Act RSS 1978 c
D-25, s 2
definition of “dependant”; Dependants of a Deceased Person Relief
Act RSPEI 1974 c D-7, s 1 definition of “dependant”;
Dependants
Relief Act RSY 2002 c 56, s 1 definition of “dependant”; Dependants
Relief Act RSNWT 1988 c D-4, s 1 definition
of “dependant”;
Dependants Relief Act RSNWT (Nu) 1988 c D-4, s 1 definition of
“dependant”; and Louisiana
Constitution of 1974, art XII, § 5.
[385] Article 1 of the United
Nations Convention on the Rights of Persons with Disabilities, 2515 UNTS 3
(opened for signature 30 March
2007, entered into force 3 May 2008) (CRPD)
states that “[p]ersons with disabilities include those who have long-term
physical,
mental, intellectual or sensory impairments which in interaction with
various barriers may hinder their full and effective participation
in society on
an equal basis with others.” Consideration should be given to the adoption
of the broader definition in s 21(1)(h)
of the Human Rights Act 1993. Aotearoa
New Zealand ratified the CRPD on 25 September 2008.
[386] In the Issues Paper, we
proposed the test be that the child’s disability renders them
“unable to earn a livelihood”.
We now recommend a test that is less
absolute, recognising that many disabled people will be able to earn some degree
of livelihood.
[387] See for example the
Care of Children Act 2004, ss 8 and 15; Child Support Act 1991, s 5; and Social
Security Act 2018, ss 23 and
78–89 and sch 2.
[388] The approach of
expressing a general principle that the deceased’s obligation to support
the claimant takes priority over
the state’s obligation but giving the
court a residual discretion was supported by Tipping J in Re Hollick
(deceased) HC Christchurch CP57/87, 18 July 1990 at 27.
[389] We note the concern
expressed in submissions that awards may disentitle disabled people from
means-tested benefits. In our view,
this is an issue best addressed in the
policies applying to those benefits.
[390] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at figure
4.
[391] In our case review of
116 cases over a 10-year period ending 18 November 2019, in no case was a parent
the applicant.
[392] Te Ture Whenua Maori Act
1993, s 106.
[393] Family Protection Act
1955, s 3A(2A).
[394] See for example Re
Green (dec’d); Green v Robson [1994] NZHC 1447; [1995] NZFLR 330 (HC), in which the High
Court significantly altered the deceased’s will in which she left several
interests in Māori freehold
land to her “foster children”. The
Court held this neglected her moral duty to her “natural” son.
[395] Law Reform (Testamentary
Promises) Act 1949, s 3.
[396] Law Reform (Testamentary
Promises) Act 1949, s 3(1); and Re Welch [1990] 3 NZLR 1 (PC) at 6.
[397] Lankow v Rose
[1994] NZCA 262; [1995] 1 NZLR 277 (CA) at 294.
[398] Lankow v Rose
[1994] NZCA 262; [1995] 1 NZLR 277 (CA) at 286.
[399] See James Every-Palmer
“Equitable Estoppel” in Andrew S Butler (ed) Equity & Trusts
in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 601 at
613–621; and Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd
[2014] NZCA 407, [2014] 3 NZLR 567 at [44].
[400] Carroll v Bates
[2018] NZHC 2463, [2018] NZAR 1570 at [74].
[401] Enright v Enright
[2019] NZHC 1124; and Young v Hunt [2019] NZHC 2822. See also Peter
Twist, James Palmer and Marcus Pawson Laws of New Zealand Restitution
(online ed) at [9].
[402] Peter Twist, James
Palmer and Marcus Pawson Laws of New Zealand Restitution (online ed) at
[2].
[403] Peter Twist, James
Palmer and Marcus Pawson Laws of New Zealand Restitution (online ed) at
[2].
[404] See for example
Tervoert v Scobie [2020] NZHC 1039.
[405] Morning Star (St
Lukes Garden Apartments) Ltd v Canam Construction Ltd CA90/05, 8 August 2006
at [50].
[406] Electrix Ltd v
Fletcher Construction Co Ltd (No 2) [2020] NZHC 918 at [96]–[100].
[407] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World – Māori Perspectives on Justice (March
2001) at 67.
[408] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land
Report (Wai 45, 1997) at 23.
[409] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World – Māori Perspectives on Justice (March
2001) at 68.
[410] Te Aka Matua o te Ture |
Law Commission Māori Customs and Values in New Zealand Law (NZLC
SP9, 2001) at 38.
[411] Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 31.
[412] Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern
New Zealand Law” (2013) 21
Taumauri | Waikato L Rev 1 at 4. Chapman Tripp
also made this point in their submission.
[413] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World — Māori Perspectives on Justice
(March 2001) at 68. See also our description of mana in Chapter 2.
[414] In Enright v
Enright [2019] NZHC 1124 and Young v Hunt [2019] NZHC 2822 the Court
held that unjust enrichment was a separate cause of action. However, the Court
in Tervoert v Scobie [2020] NZHC 1039, relying on the earlier case
Villages of New Zealand (Pakuranga) Ltd v Ministry of Health HC Auckland
CIV-2003-404-5143, 6 April 2005, held that unjust enrichment was not a separate
cause of action. In Electrix Ltd v Fletcher Construction Co Ltd (No 2)
[2020] NZHC 918 the Court preferred to decide the case on quantum meruit
principles, holding that unjust enrichment did not provide a “satisfactory
unifying conceptual foundation”: at [96].
[415] See Electrix Ltd v
Fletcher Construction Co Ltd (No 2) [2020] NZHC 918 at [96]–[100]; and
Morning Star (St Lukes Garden Apartments) Ltd v Canam Construction Ltd
CA90/05, 8 August 2006 at [44].
[416] Tatauranga Aotearoa |
Stats NZ Demographic trends: implications for the funeral industry
(January 2016) at 4–5.
[417] One study concludes that
large increases in the need for daily and weekly care are expected by 2026:
Ngaire Kerse and others Intervals of care need: need for care and support in
advanced age — LiLACS NZ (Waipapa Taumata Rau | University of
Auckland, 21 April 2017) at 11.
[418] Although NZLS agreed in
principle, they noted that they had not had time to consider whether our draft
proposals incorporated the
scope of current equitable and common law claims.
NZLS said that, on the one hand, it may be too complicated and may be preferable
to leave equitable claims to one side. On the other hand, there would be benefit
in having a clear limitation period for bringing
all claims against deceased
estates. NZLS also did not agree with including claims for contributions to the
deceased’s estate
after the deceased’s death.
[419] ADLS agreed with a
single, comprehensive cause of action but did not think it should be available
for contributions to a deceased
person’s estate.
[420] Estoppel remedies are
flexible and largely designed to perform two different functions. The first is a
reliance-based remedy. It
is to put the plaintiff in the position they would
have been in if the representation had not been made and relied upon. The second
is an expectation-based remedy. It is to fulfil the expectation relied upon by
the plaintiff. See Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd
[2014] NZCA 407, [2014] 3 NZLR 567 at [77]. A reliance-based remedy is a
fundamentally different enquiry to the unjust enrichment claim we proposed under
Option One, which
focuses on the restoration of a benefit to the plaintiff: see
Peter Twist, James Palmer and Marcus Pawson Laws of New Zealand
Restitution (online ed) at [2].
[421] See Law Reform Act 1944,
s 3(1); and Law Reform (Testamentary Promises) Amendment Act 1961.
[422] (23 November 1944) 267
NZPD 299–300.
[423] Law Reform (Testamentary
Promises) Act 1949, s 3(2)(a).
[424] Jones v Public
Trustee [1962] NZLR 363 (CA) at 374.
[425] Re Welch [1990] 3
NZLR 1 (PC), cited in Bill Patterson Law of Family Protection and
Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at 238.
[426] Byrne v Bishop
[2001] NZCA 309; [2001] 3 NZLR 780 (CA) at [10].
[427] See for example Jones
v Public Trustee [1962] NZLR 363 (CA); and Blumenthal v Stewart
[2017] NZCA 181, [2017] NZFLR 307 at [50].
[428] Some cases do, however,
speak of the purpose of the legislation, being to remedy reliance on unhonoured
promises: Nelson v Codilla [2021] NZHC 1958 at [133].
[429] See Tucker v Guardian
Trust & Executors Co of New Zealand Ltd [1961] NZLR 773 (SC) at 776,
cited in Bill Patterson Law of Family Protection and Testamentary
Promises (5th ed, LexisNexis, Wellington, 2021) at 224–225.
[430] We note that, in
hearings in proceedings under the Law Reform (Testamentary Promises) Act 1949,
it is common for evidence to be
given orally. As we discuss in Chapter 12, it is
preferable that evidence be given by affidavit alone where possible to reduce
the
length and costs of litigation.
[431] See the Court of
Appeal’s statement in Jones v Public Trustee [1962] NZLR 363 (CA)
at 374–375:
[W]e do not consider that the claimant should be refused relief simply on the
ground that he may have been influenced in part by more
laudable considerations
than purely mercenary ones. Thus, in the case of a relative who feels a moral
obligation to assist an elderly
member of his family, usually it would be
unreasonable to conclude that he would not be encouraged and comforted in the
knowledge
that it was the intention of the deceased that his services should not
go unrewarded. Indeed, now that it is clear that the promise
may relate to past
services, the motive of the person rendering the services ceases to be of any
importance in the case of a promise
to reward past services.
[432] Law Reform (Testamentary
Promises) Act 1949, s 2. A promise to make testamentary provision can be implied
from circumstances where
a promise was made to reward a claimant in the
deceased’s lifetime but they did not do so: see Rennie v Hamilton
[2004] NZFLR 270 (HC) at [33].
[433] Leach v Perpetual
Trustees Estate and Agency Co of New Zealand Ltd CA48/88, 20 March 1990 at
9; and see Nicola Peart (ed) Family Property (online looseleaf ed,
Thomson Reuters) at [TA3.06(2)] and the cases cited therein.
[434] Re Welch [1990] 3
NZLR 1 (PC) at 7; and see Bill Patterson Law of Family Protection and
Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at
226–233.
[435] Re Fagan
(dec’d); Walker v Fagan [1999] NZFLR 222 (HC) at 236; and Bill
Patterson Law of Family Protection and Testamentary Promises (5th ed,
LexisNexis, Wellington, 2021) at 229–232.
[436] For example, the High
Court in Chapman v P HC Wellington CIV-2007-485-1871, 2 July 2009 held
that the standard is measured against the particular family in question: at
[284]–[287].
However, obiter dicta from the Court of Appeal in
Blumenthal v Stewart [2017] NZCA 181, [2017] NZFLR 307 has questioned
whether there may be occasion to consider whether the “norm” can be
better defined and that it may then
anyway be concluded that it simply requires
judicial evaluation, having regard to both “common experience and the
circumstances
of the particular family setting”: at [47].
[437] Assessing different
families by different standards may be inconsistent with s 19 of the New Zealand
Bill of Rights Act 1990, which
affirms the right to freedom of discrimination on
the grounds listed in s 21 of the Human Rights Act 1993. These grounds include
religious belief, ethnic or national origins, age and family status. Any or all
of these may be relevant in the assessment of any
particular family, and the law
may respond differently depending on a judge’s assessment of these
factors.
[438] Re Welch [1990] 3
NZLR 1 (PC) at 6.
[439] See Re Welch
[1990] 3 NZLR 1 (PC) at 7; and Powell v Public Trustee [2002] NZCA 276; [2003] 1 NZLR
381, (2002) 22 FRNZ 601 (CA) at [12].
[440] See Samuels v
Atkinson [2009] NZCA 556, [2010] NZFLR 980.
[441] Law Reform (Testamentary
Promises) Act 1949, s 3(1); and Dick Webb and others Family Law in New
Zealand (13th ed, LexisNexis, Wellington, 2007) at [7.935].
[442] This was the view of the
Commission in its previous review of succession law: see Te Aka Matua o te Ture
| Law Commission Succession Law: Testamentary Claims – A discussion
paper (NZLC PP24, 1996) at 87.
[443] Te Ture Whenua Maori Act
1993, s 106(1). Section 108(2) sets out the persons to whom a deceased owner may
dispose of their interests
in Māori freehold land by will.
[444] See Wills Act 2007, s
7.
[445] The Commission for
Financial Capability surveyed 11,069 people online in 2017, with 5,222
respondents (47.2 per cent) stating they
had a legal will, 5,343 stated they did
not (48.3 per cent), and 504 were unsure (4.6 per cent): Commission for
Financial Capability
Financial Capability Barometer Survey 2017.
Fifty-three per cent of respondents to the Succession Survey said they had a
will: Ian Binnie and others Entitlements to Deceased People’s Property
in Aotearoa New Zealand: Public Attitudes and Values — A General
Population Survey (Te Whare Wānanga o Ōtākou | University of
Otago, research report supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [156] and table 5.
[446] For example, based on
statistics extracted from the High Court’s case management system, 18,465
applications for probate,
letters to administer or elections to administer were
filed in 2019. Of these, 1,454 were for letters of administration and another
318 were letters of administration with will annexed: email from Tāhū
o te Ture | Ministry of Justice to Te Aka Matua o
te Ture | Law Commission
regarding data on applications for probate and letters of administration filed
with the court annually between
2015 and 2019 (11 August 2020).
[447] In 2019, 18,465
administration applications were made and there were 33,774 registered deaths of
adults aged 18 and over (55 per
cent). In 2018, there were 17,561 applications
and 32,799 deaths (54 per cent), and in 2017, there were 18,121 applications and
32,937
deaths (55 per cent): email from Tāhū o te Ture | Ministry of
Justice to Te Aka Matua o te Ture | Law Commission regarding
data on
applications for probate and letters of administration filed with the court
annually between 2015 and 2019 (11 August 2020).
Total deaths figures have been
sourced from the Infoshare platform, available at Tatauranga Aotearoa | Stats NZ
“Births and
deaths: Year ended March 2020 — Infoshare tables”
(18 May 2020) <www.stats.govt.nz>.
[448] Section 65 of the
Administration Act 1969 provides that certain assets with a value not exceeding
the prescribed amount may be paid
to specified individuals without requiring
administration of the estate to be obtained. The prescribed amount is currently
set at
$15,000: Administration (Prescribed Amounts) Regulations 2009, reg 4.
[449] In response to the
Succession Survey, 41 per cent of Māori respondents, 24 per cent of Pacific
respondents and 21 per cent
of Asian respondents said they had a will: Ian
Binnie and others Entitlements to Deceased People’s Property in
Aotearoa New Zealand: Public Attitudes and Values — A General
Population Survey (Te Whare Wānanga o Ōtākou | University of
Otago, research report supported by the Michael and Suzanne Borrin Foundation,
May 2021) at table 5. The Commission for Financial Capability Financial
Capability Barometer Survey 2017 found that of the 1,602 respondents who
identified as Māori, 498 said they had a will (31.1 per cent) compared with
4,098 respondents
who identified as European/Caucasian (55.2 per cent).
[450] The Succession Survey
found that age was the primary influence on having a will: Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [159]. In
the Commission for Financial Capability Financial Capability Barometer Survey
2017, nearly all (97.3 per cent) European/Caucasian respondents aged 75+ had
a will but only two-thirds (64.4 per cent) aged 50–54
had a will. The rate
of will-making also increased with age for Māori respondents (75 per cent
of Māori respondents aged
75+ had a will compared with 29.8 per cent of
Māori respondents aged 50–54): Commission for Financial Capability
Financial Capability Barometer Survey 2017.
[451] Succession to Māori
freehold land on intestacy is determined according to ss 109 and 109A of Te Ture
Whenua Maori Act 1993.
[452] Under s 29 of the
Interpretation Act 1999, “person” includes a corporation sole, a
body corporate and an unincorporated
body.
[453] The same rules apply to
both partially and wholly intestate estates.
[454] Where no person is
primarily entitled to any beneficial freehold interest, the court shall
determine the persons entitled to succeed
in accordance with tikanga Māori:
Te Ture Whenua Maori Act 1993, s 114.
[455] Te Ture Whenua Maori Act
1993, s 114A. The Māori Land Court may also determine whether the child is
a whāngai and whether
there is a relationship of descent: s 115.
[456] Prior to 6 February 2021
when the recent amendments came into force, Te Ture Whenua Maori Act 1993 gave
the Māori Land Court
power to determine whether or not the whāngai was
entitled to succeed to any beneficial interest in any Māori freehold
land
to the same extent or to a lesser extent as they would have been entitled if
they had been the deceased’s child.
[457] They are also set out in
Te Aka Matua o te Ture | Law Commission Review of Succession Law: Rights to a
person’s property on death | He arotake i te āheinga ki
ngā rawa a te tangata ka mate ana (NZLC IP46, 2021) at [6.9].
[458] See for example
Administration Act 1969, s 78(1)(a).
[459] This is the general aim
of the present regime in Aotearoa New Zealand: see the speech of the Hon Rex
Mason when introducing the
Administration Bill: (23 November 1944) 267 NZPD
288–289. See also the speech of the Hon Ralph Hanan when introducing the
Administration Amendment Bill 1965: (21 September 1965) 344 NZPD 2875. It is
also that most frequently opined in comparable jurisdictions as the principal
basis for intestacy rules: see for example Law
Commission of England and Wales
Family Law: Distribution on Intestacy (Law Com No 187, 1989) at [24]; and
New South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at [1.24]; Manitoba Law Reform Commission Report on Intestate
Succession (Report 61, 1985) at 7; and Alberta Law Reform Institute
Reform of the Intestate Succession Act (Report No 78, 1999) at 59.
[460] In Chapter 2 we also
note that there is merit in the Government considering the consolidation of
multiple statutes relevant to the
administration and succession of both testate
and intestate estates.
[461] The legal parents of a
child are determined in accordance with the Status of Children Act 1969 and the
long-existing common law
rule that the legal mother is the woman who has given
birth to the child: Te Aka Matua o te Ture | Law Commission New Issues in
Legal Parenthood (NZLC R88, 2005) at [3.3].
[462] Tāhū o te Ture
| Ministry of Justice Adoption in Aotearoa New Zealand: Discussion
document (18 June 2021) at 48–49. The Commission is also reviewing
surrogacy and has proposed recognising legal parenthood for surrogate-born
children through a separate legal framework rather than using the existing
adoption laws: Te Aka Matua o te Ture | Law Commission
Te Kōpū
Whāngai: He Arotake | Review of Surrogacy (NZLC IP47, 2021) at
ch 7.
[463] Tatauranga Aotearoa |
Stats NZ “Marriages, civil unions, and divorces: Year ended December
2019” (5 May 2020) <www.stats.govt.nz>.
See also Te Aka Matua o te
Ture | Law Commission Relationships and Families in Contemporary New Zealand
| He Hononga Tangata, he Hononga Whānau i Aotearoa o
Nāianei (NZLC SP22, 2017) at 30.
[464] This is just under one
in three Māori children (29 per cent): Arunachalam Dharmalingam and others
Patterns of Family Formation and Change in New Zealand (Te Manatū
Whakahiato Ora | Ministry of Social Development, 2004) at 73.
[465] It would be consistent
with the intestacy regimes throughout Australia, the United Kingdom and Canada
for the definition of descendants
to refer only to natural and legally adopted
descendants.
[466] One-third believed that
the children from the first marriage should receive a majority share: Ian Binnie
and others Entitlements to Deceased People’s Property in Aotearoa New
Zealand: Public Attitudes and Values — A General Population
Survey (Te Whare Wānanga o Ōtākou | University of Otago,
research report supported by the Michael and Suzanne Borrin Foundation,
May
2021) at [185] and figure 17.
[467] See Chapter 10 on
settlement agreements and Chapter 5 on family provision.
[468] See the discussion in
Chapter 5.
[469] Some ADLS committee
members also supported this proposal, while others thought whāngai should
be excluded from the regime because
that would ensure consistency throughout the
country as to the status of whāngai.
[470] Administration Act 1969,
s 5(1).
[471] Tāhū o te Ture
| Ministry of Justice Adoption in Aotearoa New Zealand: Discussion
document (18 June 2021) at 29–31.
[472] In the Tasmanian case
Re Estate of K (1996) 5 Tas R 365, (1996) 131 FLR 374, the Court
took a broader approach to conception by providing that intestate succession
rights could be afforded to a child who is
born after the death of their father
from a fertilised embryo stored prior to death. In Québec in 2017, the
Court of Appeal
recognised the filiation (lineage) of a child born from a stored
embryo more than a year after the father’s death, thus entitling
the child
to succeed to their father’s intestate estate: Droit de la famille
— 171644 [2017] QCCA 1058, [2017] QJ No 9197.
[473] See Advisory Committee
on Assisted Reproductive Technology Proposed Guidelines for the Posthumous
Use of Gametes, Reproductive Tissue and Stored Embryos: Stage two consultation
document (Manatū Hauora | Ministry of Health, July 2020) for more
detail on the proposed guidelines; and see also Chapter 5.
[474] See Manitoba Law Reform
Commission Posthumously Conceived Children: Intestate Succession and
Dependants Relief — The Intestate Succession Act: Sections
1(3), 6(1), 4(5), 4(6) and 5 (Report 118, 2008) at 16; and Law Reform
Commission of Saskatchewan Reform of The Intestate Succession Act,
1996: Final Report (2017) at 15.
[475] Advisory Committee on
Assisted Reproductive Technology Proposed Guidelines for the Posthumous Use
of Gametes, Reproductive Tissue and Stored Embryos: Stage two consultation
document (Manatū Hauora | Ministry of Health, July 2020) at [65].
[476] Te Aka Matua o te Ture |
Law Commission Te Kōpū Whāngai: He Arotake | Review of
Surrogacy (NZLC IP47, 2021) at [5.21]; and Chapter 5.
[477] British Columbia allows
the descendant to inherit where they were born two years after the
deceased’s death, and in Manitoba,
the Law Reform Commission recommended
that the posthumously conceived children should be eligible to inherit if they
were conceived
within two years of the grant of administration: see Wills,
Estates and Succession Act SBC 2009 c 13 at s 8.1; and Manitoba Law Reform
Commission Posthumously Conceived Children: Intestate Succession and
Dependants Relief — The Intestate Succession Act: Sections
1(3), 6(1), 4(5), 4(6) and 5 (Report 118, 2008) at 24 and recommendation
1.
[478] Advisory Committee on
Assisted Reproductive Technology Proposed Guidelines for the Posthumous Use
of Gametes, Reproductive Tissue and Stored Embryos: Stage two consultation
document (Manatū Hauora | Ministry of Health, July 2020) at 41.
[479] See the discussion below
on the distribution between partner and descendants.
[480] Aspects of legal
parenthood are being considered by the Commission’s review of surrogacy
and the Ministry of Justice’s
review of adoption in Aotearoa New Zealand:
see Te Aka Matua o te Ture | Law Commission Te Kōpū Whāngai:
He Arotake | Review of Surrogacy (NZLC IP47, 2021) at ch 7; and
Tāhū o te Ture | Ministry of Justice Adoption in Aotearoa New
Zealand: Discussion document (18 June 2021).
[481] Nicola Peart “Life
beyond Death: Regulating Posthumous Reproduction in New Zealand” (2015) 46
VUWLR 725 at 743.
[482] The Commission began
this work in 2003: see Te Aka Matua o te Ture | Law Commission New Issues in
Legal Parenthood (NZLC R88, 2005).
[483] The intestacy regime in
Aotearoa New Zealand is not alone in failing to define “issue”. The
term “issue”
is used frequently in intestacy regimes internationally
and is rarely defined.
[484] Administration Act 1969,
s 2(1).
[485] Property (Relationships)
Act 1976, s 2 definition of “family chattels”. In the PRA review, we
recommended amending the
definition of family chattels to those items
“used wholly or principally for family purposes”: Te Aka Matua o te
Ture
| Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R11 and [3.86]–[3.89].
[486] Consideration should
also be given to the Personal Property Securities Act 1999 when addressing the
definition of family chattels
in the new Act and the new Relationship Property
Act.
[487] Humphrey v
Humphrey FC Christchurch FAM-2003-009-3044, 25 May 2005 at [112]. See also
H v F FC Auckland FAM-2005-004-1312, 27 January 2006 at [48]; and
Stuart v Stuart FC Christchurch FAM-2003-00-5175, 16 March 2005 at
[19].
[488] Scotland is the only
jurisdiction across the United Kingdom, Australia and Canada to exclude
heirlooms: see Succession (Scotland)
Act 1964, ss 8(6)(b)–(c). Section
8(6)(c) defines heirloom to mean any article that has associations with the
intestate’s
family of such nature and extent that it ought to pass to some
member of that family other than the surviving spouse of the intestate.
The
position of heirlooms was raised by the Law Commission of England and Wales and
Australia’s National Committee, but neither
made recommendations to
exclude heirlooms from the definition of personal chattels: Law Commission of
England and Wales Distribution on Intestacy (Law Com WP No 108, 1988) at
19; and New South Wales Law Reform Commission Uniform succession laws:
intestacy (R116, 2007) at [4.17]–[4.19].
[489] As raised by Succeed
Legal in their submission.
[490] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R21.
[491] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R22.
[492] As defined in the
Property (Relationships) Act 1976, ss 2 and 2C–2D: see Administration Act
1969, s 2(1) definition of “de
facto relationship”.
[493] Administration Act 1969,
s 77B. See also ss 2E and 14A of the Property (Relationships) Act 1976.
[494] Administration Act 1969,
s 77C.
[495] The courts have
interpreted s 77C of the Administration Act 1969 differently. See Re
Trotter HC Christchurch CIV-2009-409-2584, 10 May 2010; W v P [2012]
NZFC 3293; and Warrender v Warrender [2013] NZHC 787, [2013] NZFLR 565.
[496] These are discussed in
Chapter 4.
[497] The rules applying to de
facto relationships would include a presumption that two people are in a
qualifying de facto relationship
if they have maintained a common household for
a period of at least three years: see Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at R26.
[498] In the PRA review, we
said the court must be satisfied it is just to make “division”
orders, but that could be applied
to intestacy entitlements.
[499] Note several Australian
jurisdictions expressly provide that the surviving partners can enter a written
agreement or obtain a court
order within a set period to distribute the property
differently: Succession Act 2006 (NSW), s 125; Succession Act 1981 (Qld), s 36;
Intestacy Act 2010 (Tas), s 26; Administration and Probate Act 1958 (Vic), ss
70Z–70ZE. The distribution of personal chattels can cause difficulties
where there are contemporaneous partners, and some jurisdictions make
special
provision for these: see for example Administration and Probate Act 1969 (NT), s
67(3).
[500] Administration Act 1969,
s 77C. See Chapter 4 for our proposed rules to share relationship property
contested by surviving partners
from contemporaneous relationships.
[501] The inconsistency in the
current law may constitute discrimination under human rights law: New Zealand
Bill of Rights Act 1990,
s 19(1); and Human Rights Act 1993, s 21.
[502] Comparable to s 21 of
the Property (Relationships) Act 1976.
[503] Comparable to s 21H of
the Property (Relationships) Act 1976.
[504] New South Wales Law
Reform Commission Uniform succession laws: intestacy (R116, 2007) at
[8.17]; and Alberta Law Reform Institute Reform of the Intestate Succession
Act (Report No 78, 1999) at 139–140.
[505] New South Wales Law
Reform Commission Uniform succession laws: intestacy (R116, 2007) at
[8.17]; and South Australian Law Reform Institute South Australian Rules of
Intestacy (Report 7, 2017) at [4.6.3].
[506] Australia’s
National Committee believed a majority of Australians would prefer this method:
see New South Wales Law Reform
Commission Uniform succession laws:
intestacy (R116, 2007) at [8.32].
[507] This approach is taken
in Scotland: see Succession (Scotland) Act 1964, s 6. The Scottish Law
Commission reviewed the process in
2009 and recommended retaining it: see
Scottish Law Commission Report on Succession (Scot Law Com No 215, 2009)
at [2.43]. It is also the method used in South Australia: see
Administration and Probate Act 1919 (SA), ss 72I and 72J. In 2017, the South
Australian Law Reform Institute recommended it be continued for grandchildren
but that, in other cases, distribution
should be per stirpes: see South
Australian Law Reform Institute South Australian Rules of Intestacy
(Report 7, 2017) at Recommendation 25.
[508] See for example
Australian Capital Territory, Northern Territory and South Australia:
Administration and Probate Act 1929 (ACT), s 49BA; Administration and Probate
Act 1969 (NT), s 68(3); Administration and Probate Act 1919 (SA), s 72K.
[509] This is common in
Canadian provinces: see The Intestate Succession Act CCSM 1990 c 185, s 8;
Wills, Estates and Succession Act SBC 2009 c 13, s 53; Wills and Succession Act
SA 2010 c W-12.2, ss 109 and 110; Intestate Succession Act RSNWT 1988 c
I–10, s 11; Estates Administration Act RSO 2014 c E.22, s 25; Devolution
of Estates Act RSNB 1973 c D-9, s 73; Intestate Succession Act RSNS 1989 c 236,
s 13; Estate Administration Act RSY 2002 c 77; and Intestate Succession Act
RSNWT (Nu) 1988, c I–10, s 11.
[510] New South Wales Law
Reform Commission Uniform succession laws: intestacy (R116, 2007) at
Recommendation 43; South Australian Law Reform Institute South Australian
Rules of Intestacy (Report 7, 2017) at Recommendation
43–Recommendation 44; Law Commission of England and Wales Family Law:
Distribution on Intestacy (Law Com No 187, 1989) at [62]; and Law Reform
Commission of British Columbia Report on Statutory Succession Rights (LRC
70, 1983) at 38–39.
[511] Chris Kelly made this
comment in his submission.
[512] It is only since 30
January 2021 that this has changed to 18 years: see Trusts Act 2019, sch 4 pt 1.
Previously, those under 20
years or otherwise married or in a civil union could
take an absolute interest: Trustee Act 1956, s 40.
[513] For example NSW,
Tasmania, Western Australia, South Australia, Queensland and Victoria: see
Succession Act 2006 (NSW), s 138; Intestacy Act 2010 (Tas), s 39; Administration
Act 1903 (WA), s 17A; South Australian Law Reform Institute South Australian
Rules of Intestacy (Report 7, 2017) at [4.7.1]; and New South Wales Law
Reform Commission Uniform succession laws: intestacy (R116, 2007) at
[12.9].
[514] South Australian Law
Reform Institute Cutting the cake: South Australian rules of intestacy
(Issues Paper 7, 2015) at [298].
[515] Note we recommend in
Chapter 18 that all new provisions should conform to modern drafting
standards.
[516] Sections 62–64 of
the Trusts Act 2019 replaced ss 40–41 of the Trustee Act 1956, which were
overly complex and restrictive:
see Te Aka Matua o te Ture | Law Commission
Review of the Law of Trusts: A Trusts Act for New Zealand (NZLC R130,
2013) at [6.11]–[6.15].
[517] Administration
(Prescribed Amounts) Regulations 2009, reg 5.
[518] Law Commission of
England and Wales Intestacy and Family Provision Claims on Death: A
Consultation Paper (Law Com CP No 191, 2009) at [3.9] and [3.14]; and Law
Reform Commission of Saskatchewan Reform of The Intestate Succession Act,
1996: Final Report (2017) at 9.
[519] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [182] and
figure 17.
[520] This is because, where
an intestate is survived by a partner and descendants, the partner will receive
the personal chattels, $155,000
prescribed amount and one-third of the remaining
estate.
[521] The current amount was
set in 2009. The average house price in Aotearoa New Zealand in August 2021 was
$937,148: Property Value
“Residential House Values”
<www.propertyvalue.co.nz>.
[522] We note that ADLS
considered that a prescribed amount should be retained for partners where the
intestate is survived by a partner
and parent(s) but no descendants.
[523] In the scenario,
respondents were asked to divide a deceased woman’s estate between her two
adult children and her second
husband. Respondents were first told that the
estate was worth $1 million. They were then asked whether their answer would
change
if the estate was worth $150,000. Only seven per cent said they would.
About 50 per cent of respondents said that the two adult children
should get
more than half of the estate regardless of whether it was worth $1 million or
$150,000: Ian Binnie and others Entitlements to Deceased People’s
Property in Aotearoa New Zealand: Public Attitudes and Values — A General
Population
Survey (Te Whare Wānanga o Ōtākou | University of
Otago, research report supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [182] and figure 17.
[524] For example, with the
exception of Québec, Newfoundland and Labrador, New Brunswick and Prince
Edward Island, a prescribed
amount for partners is used in the intestacy regimes
throughout Canada, Australia and the United Kingdom.
[525] See for example New
South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at Recommendation 6; and Law Reform Commission of Saskatchewan
Reform of The Intestate Succession Act, 1996: Final Report (2017)
at 9.
[526] See a similar discussion
on a partner’s protected interest in the family home under the Property
(Relationships) Act 1976
in Te Aka Matua o te Ture | Law Commission Review of
the Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at [18.14].
[527] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [164] and
figure 16.
[528] When presented with a
scenario involving a surviving husband and the couple’s two adult
children, 64 per cent of respondents
favoured the husband getting more than a
per capita share of the estate. This was around 42 per cent when the children
were from
a former relationship: Ian Binnie and others Entitlements to
Deceased People’s Property in Aotearoa New Zealand: Public Attitudes and
Values — A General Population Survey (Te Whare Wānanga o
Ōtākou | University of Otago, research report supported by the Michael
and Suzanne Borrin Foundation,
May 2021) at [169] and figure 17.
[529] NZLS submitted that it
favoured Option One of the options presented but also stated earlier in its
submission that it did not believe
the intestacy provisions required
amendment.
[530] Chris Kelly submitted
that a surviving partner should take two-thirds rather than half of the
remaining estate where one of the
intestate’s descendants is from a
different relationship.
[531] See the discussion above
about distributing to descendants using the per stirpes/by family method.
[532] A survey of 548 wills
proved in the NSW Probate Registry in 2004 revealed that around 75 per cent of
will-makers with a partner
and children chose to give the entire residue of
their estate to their partner: New South Wales Law Reform Commission I give,
devise and bequeath: an empirical study of testators’ choice of
beneficiaries (Research Report 13, 2006) at [3.9]. A survey of 800 wills
filed with the court in Alberta in 1992 identified similar results. Of
260 wills
involving a surviving spouse and children, 164 (63 per cent) allocated the
entire estate to the spouse: see Alberta Law
Reform Institute Reform of the
Intestate Succession Act (Report No 78, 1999) at 190. Older studies
conducted in England and the United States are also cited in that report: at 52.
A public
attitudes survey conducted in the United Kingdom in 2010 found that 51
per cent of respondents would allocate the whole estate to
the wife where a
married man was survived by his wife and two children over 18 and a further 29
per cent would prioritise the wife.
Similar results were seen when respondents
were asked about young children: Alun Humphrey and others Inheritance and the
family: attitudes to will-making and intestacy (National Centre for Social
Research, August 2010) at 39–40. Note that, when respondents were asked
about a cohabitant instead
of a wife, only a third (32 per cent) said that the
whole estate should be allocated to the partner: at 43.
[533] When asked what should
happen to the estate when an intestate is survived by their partner and the
couple’s two adult children,
64 per cent said the partner should get more
than a per capita share. When presented with a scenario where the children were
from
an earlier relationship, around 42 per cent thought the partner should get
more than a per capita share: Ian Binnie and others Entitlements to Deceased
People’s Property in Aotearoa New Zealand: Public Attitudes and Values
— A General Population Survey (Te Whare Wānanga o
Ōtākou | University of Otago, research report supported by the Michael
and Suzanne Borrin Foundation,
May 2021) at [169] and figure 17. For Māori
respondents, these figures were 55 per cent and 35 per cent respectively: at
[173]
and [179].
[534] See Lawrence W Waggoner
“The Multiple-Marriage Society and Spousal Rights under the Revised
Uniform Probate Code” (1991) 76 Iowa L Rev 223 at 232–233; and the
discussion of conduit theory in Law Commission of England and Wales Intestacy
and Family Provision Claims on Death: A Consultation Paper (Law Com CP No
191, 2009) at [3.100]–[3.111].
[535] See the discussion in
Law Commission of England and Wales Family Law: Distribution on Intestacy
(Law Com No 187, 1989) at [36].
[536] This concern was raised
in consultation in NSW: see New South Wales Law Reform Commission Uniform
succession laws: intestacy (R116, 2007) at [3.45].
[537] This includes New South
Wales, Victoria, Tasmania, Manitoba, Alberta and British Columbia: see
Succession Act 2006 (NSW), ss 112 and 113; Administration and Probate Act 1958
(Vic), ss 70K–70L; Intestacy Act 2010 (Tas), ss 13 and 14; The Intestate
Succession Act CCSM 1990 c 185, ss 2(2) and 2(3); Wills and Succession Act SA
2010 c W-12.2, s 61; and Wills, Estates and Succession Act SBC 2009 c 13, s 21.
It was recommended by the Law Reform Commission of Saskatchewan: see Law Reform
Commission of Saskatchewan Reform of The Intestate Succession Act,
1996: Final Report (2017) at 10. It also forms part of the Uniform
Probate Code that has been enacted by many American states: see Uniform Probate
Code
§ 2-102.
[538] Any descendant under 18
years would take a vested interest in trust as discussed above.
[539] Alun Humphrey and others
Inheritance and the family: attitudes to will-making and intestacy
(National Centre for Social Research, August 2010) at 63; and Gareth Morrell,
Matt Barnard and Robin Legard The Law of Intestate Succession: Exploring
Attitudes Among Non-Traditional Families (Final Report, National Centre for
Social Research, 2009) at 17–18. These preferences were also reflected in
consultation responses
to the New South Wales Law Reform Commission: see New
South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at [9.10].
[540] Under the current law,
siblings include half-brothers and half-sisters. We do not propose any change to
this.
[541] This includes England
and Wales, Northern Ireland, all Australian states (although in Western
Australia, siblings get a share of
the estate if it is over a certain value: see
Administration Act 1903 (WA), s 14) and all common law Canadian provinces (in
Québec, the estate is partitioned equally between the parents and
siblings: see
Civil Code of Québec CQLR c CCQ-1991, § 674). In
Scotland, a surviving parent or parents has the right to one-half of
the estate
and any surviving siblings have the right to the other half: Succession
(Scotland) Act 1964, s 2(1)(b).
[542] Note that the
maternal/paternal terminology does not recognise that legal parenthood does not
require motherhood or fatherhood.
It does not, for example, recognise the at
least 1,476 same sex couples living with children recorded in the 2013 Census:
data included
in Table 20: Family type with type of couple, available at
Tatauranga Aotearoa | Stats NZ “2013 Census QuickStats about families
and
households” (4 November 2014) <www.stats.govt.nz>. See also Te Aka
Matua o te Ture | Law Commission Relationships and Families in Contemporary
New Zealand | He Hononga Tangata, he Hononga Whānau i Aotearoa o
Nāianei (NZLC SP22, 2017) at 35. Our preference is to adopt a
gender-neutral option. This would also have the benefit of future-proofing
the
legislation for the potential to have more than two legal parents: see Te Aka
Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [6.67].
[543] Manitoba Law Reform
Commission Report on Intestate Succession (Report 61, 1985) at 32. See
also Alberta Law Reform Institute Reform of the Intestate Succession Act
(Report No 78, 1999) at 154–156.
[544] Only two estates, one
valued at $1.028 million in 2017 and one valued at $13,390.10 in 2018 have
vested in the Crown between January
2017 and August 2021. In August 2021, Te Tai
Ōhanga | The Treasury provided corrected information to the Commission
regarding
bona vacantia estates, as The Treasury’s earlier information
shared with the Commission excluded the estate worth $1.028 million
in 2017:
email from Te Tai Ōhanga | The Treasury to Te Aka Matua o te Ture | Law
Commission regarding bona vacantia estates
(26 August 2021). No application had
been made regarding these estates.
[545] See for example s 38 of
the Intestacy Act 2010 (Tas); and s 137 of the Succession Act 2006 (NSW). Both
provisions were enacted following recommendation by Australia’s National
Committee and are modelled on s 20 of the Property Law Act 1974 (Qld): see New
South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at Recommendation 39 and [10.38]–[10.40].
[546] For example, in NSW in
the period 2001–2005 the Public Trustee paid A$24,289,946.86 into Treasury
from 92 estates (averaging
A$264,000 each). During that period, the limit was
set at aunts and uncles rather than first cousins or more remote relatives: see
New South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at [10.4].
[547] Succession to Māori
freehold land, both when the deceased left a will or died intestate, is governed
by Te Ture Whenua Maori
Act 1993.
[548] Family Protection Act
1955, s 4 (for the purposes of the Act, an estate is deemed to include all
property that is subject of a donatio
mortis causa); and Law Reform
(Testamentary Promises) Act 1949, s 3(5).
[549] Bill Patterson Law of
Family Protection and Testamentary Promises (5th ed, LexisNexis, 2021) at
221; and McCormack v Foley [1983] NZLR 57 (CA) at 66.
[550] Law Reform (Testamentary
Promises) Act 1949, s 3; and McCormack v Foley [1983] NZLR 57 (CA) at
64.
[551] Bristow v Smith
[2013] NZHC 2866, (2013) 31 FRNZ 610 at [43] and [45]. The Court reasoned
that its powers under ss 3(5)–(6) of the Law Reform (Testamentary
Promises) Act 1949 to order
the incidence for the payment of debts from the
estate gave it powers to order that an award under the Act should take priority
over
the payment of a debt to a creditor. The High Court noted at [43] it was
taking a different view to obiter comments made by the Court
of Appeal in
McCormack v Foley [1983] NZLR 57 (CA) at 71 and 76 in which Richardson
and McMullin J opined that these provisions gave no express power to determine
priorities between
creditors and claimants.
[552] Section 26 of the
Administration Act 1969 provides that the whole estate is in the hands of the
administrator for the payment of
debts.
[553] Family Protection Act
1955, s 7(1); and Law Reform (Testamentary Promises) Act 1949, s 3(5).
[554] Family Protection Act
1955, s 7(2); and Law Reform (Testamentary Promises) Act 1949, s 3(6).
[555] Family Protection Act
1955, s 5(2).
[556] Law Reform (Testamentary
Promises) Act 1949, ss 3(1) and (4).
[557] Law Reform (Testamentary
Promises) Act 1949, s 3(3).
[558] Property (Relationships)
Act 1976, s 94(2).
[559] Property (Relationships)
Act 1976, s 20A.
[560] Property (Relationships)
Act 1976, s 19.
[561] Property (Relationships)
Act 1976, s 42. A notice lodged under s 42 has the effect of a caveat.
[562] Property (Relationships)
Act 1976, s 20B.
[563] Property (Relationships)
Act 1976, ss 58, 60(6) and 78(1)(c).
[564] Hamilton v Hamilton
[2003] NZFLR 883 (HC) at [60].
[565] Hamilton v Hamilton
[2003] NZFLR 883 (HC) at [60], citing the dictum in Re Hayward [1988] NZHC 538; [1989]
1 NZLR 759 at 767.
[566] The current position is
that the court has no jurisdiction to interfere with parts of a will that
implement such a contract: see
Breuer v Wright [1982] 2 NZLR 77 (CA).
[567] See Re Kensington
(Deceased) [1949] NZGazLawRp 22; [1949] NZLR 382 (CA). See also Clayton v Clayton [Vaughan Road
Property Trust] [2016] NZSC 29, [2016] 1 NZLR 551, where te Kōti Mana
Nui | Supreme Court held Mr Clayton’s collection of powers under the trust
deed amounted to property
for the purposes of the Property (Relationships) Act
1976.
[568] Property (Relationships)
Act 1976, s 44.
[569] Property (Relationships)
Act 1976, ss 44C and 44F.
[570] Property (Relationships)
Act 1976, s 83.
[571] In Hau v Hau
[2018] NZHC 881, [2018] NZFLR 464, the Court noted that the couple’s
family home was relationship property even though it had passed to the
deceased’s
brother through survivorship. The Court noted, at [50], there
was no express power under the Property (Relationships) Act 1976 for
the Court
to recover the property but held Parliament could not have intended the
Act’s property regime to be automatically
excluded by the operation of
survivorship.
[572] See Nicola Peart (ed)
Family Property (online looseleaf ed, Thomson Reuters) at [PR88.05].
[573] See for example
Public Trust v W [2004] NZCA 327; [2005] 2 NZLR 696 (CA).
[574] See for example
Public Trust v Relph [2008] NZHC 1944; [2009] 2 NZLR 819 (HC); and Crotty v Williams
FC Hamilton FAM-2002-19-1082, 29 August 2005. Leave has also been sought when
the surviving partner killed the deceased and the estate
has sought to prevent
the surviving partner from benefiting from their crime: H v T HC
Christchurch CIV-2006-409-2615, 5 June 2007. The Succession (Homicide) Act 2007
now addresses this situation.
[575] A v D [2019] NZHC
992, [2019] NZFLR 105; and Rule v Simpson [2017] NZHC 2154.
[576] We have heard from
counsel for the plaintiffs that the claims in Rule v Simpson [2017] NZHC
2154 have settled and will not be proceeding to trial. At the time of writing
this Report, the trial in A v D [2019] NZHC 992, [2019] NZFLR 105 has
been heard but no judgment has been issued.
[577] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R65 and
[11.107].
[578] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R92 and
[15.67]–[15.70].
[579] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[11.102]–[11.106].
[580] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R58–R63 and [11.65]–[11.101].
[581] See for example
Public Trust v W [2004] NZCA 327; [2005] 2 NZLR 696 (CA); A v D [2019] NZHC 992,
[2019] NZFLR 105; and Hau v Hau [2018] NZHC 881, [2018] NZFLR 464.
[582] Email from Toitū Te
Whenua | Land Information New Zealand to Te Aka Matua o te Ture | Law Commission
regarding data on land
transfers by survivorship (29 October 2019). Transmission
instruments are lodged with Toitū Te Whenua | Land Information New
Zealand
to transfer property to an executor, administrator or survivor.
[583] We received this
feedback primarily through the responses we received from the Practitioner
Survey we issued in April 2020 to lawyers
who work in succession law.
[584] In a costs decision, the
High Court held it would be open for a Family Protection Act claimant to seek
leave to divide relationship
property as a derivative action if the personal
representative neglected their duty of even-handedness to the claimant by
failing
to seek leave themselves under s 88(2) of the Property (Relationships)
Act 1976: Nawisielski v Nawisielski [2014] NZHC 2039, [2014] NZFLR 973.
[585] A v D [2019] NZHC
992, [2019] NZFLR 105.
[586] Counsel for the
plaintiffs in Rule v Simpson [2017] NZHC 2154 has confirmed the case has
settled.
[587] Rule v Simpson
[2017] NZHC 2154.
[588] Property (Relationships)
Act 1976, s 42.
[589] If a partner elects to
take their relationship property entitlements, they will receive their gifts
under the will plus a top-up
from the relationship property up to the value of
their relationship property entitlements.
[590] Property (Relationships)
Act 1976, s 94(3).
[591] See for example
additional compensation available under ss 17 and 18B of the Property
(Relationships) Act 1976; and B v Adams (2005) 25 FRNZ 778 (FC), cited in
Nicola Peart (ed) Family Property (online looseleaf ed, Thomson Reuters)
at [PR94.01].
[592] Law Reform (Testamentary
Promises) Act 1949, s 3(3).
[593] In addition, we suggest
retaining the general rule that estates, both testate and intestate, are
distributed once creditors’
claims have been satisfied.
[594] As noted above, the High
Court in Bristow v Smith [2013] NZHC 2866, (2013) 31 FRNZ 610 differed
with the obiter views of the Court of Appeal in McCormack v Foley [1983]
NZLR 57 (CA) in holding that it had power to order the incidence of awards under
the Act and payment of debts to creditors in such a way as to
grant priority to
the award.
[595] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[18.13]–[18.17]. We recognised the difficulties of the protected interest
because it is available only
to homeowners and it is questionable whether the
extent of the interest provides effective protection.
[596] Property (Relationships)
Act 1976, s 78. But see Hare v Hare [2019] NZHC 2801, in which the Court
held that a charging order the Commissioner of Inland Revenue had obtained in
respect of a bankrupt’s unpaid
child support over the bankrupt’s
family home constituted security for a debt and thus took priority over the
bankrupt’s
wife’s protected interest in the home.
[597] Hamilton v Hamilton
[2003] NZFLR 883 (HC) at [60].
[598] These grounds for when
the court may order the recovery of property are based on the second option for
reform we proposed in Chapter
9 of the Issues Paper. However, the recommendation
omits an additional ground for recovery in respect of property that was disposed
of within five years of the deceased’s death with the effect of defeating
an entitlement or claim under the new Act. We suggested
this property might be
recovered even where there had been no intention to defeat an entitlement or
claim. We have not recommended
this as a ground to recover. Several submitters
were concerned at the test being too uncertain and that transactions may be set
aside
too easily. We also note the potential burden created by having to
scrutinise the deceased’s transactions up to five years
prior to death.
[599] Property (Relationships)
Act 1976, s 44; and Property Law Act 2007, ss 344–350.
[600] Regal Castings Ltd v
Lightbody [2008] NZSC 87, [2009] 2 NZLR 433.
[601] Toni Collins
“Concurrent Interests in Land” in Hinde McMorland & Sim Land
Law in New Zealand (online looseleaf ed, LexisNexis) at [13.005], citing
Wright v Gibbons [1949] HCA 3, (1949) 78 CLR 313 at 328.
[602] Public Trust v W
[2004] NZCA 327; [2005] 2 NZLR 696 (CA); Ruocco v Wright HC Christchurch CIV-2008-409-311,
16 December 2008; and Public Trust v Thomasen HC Auckland
CIV-2009-404-3702, 13 October 2010. Note s 83 of the Property (Relationships)
Act 1976 requires joint tenancy interests
that have passed to the surviving
partner to be classified as if the deceased partner had not died.
[603] In a technical sense,
when the deceased owned property as joint tenants with another, the surviving
joint tenant does not receive
the property as if the deceased had disposed of
their interest. Nevertheless, we use the term “recipient” here to
mean
the remaining joint tenant(s) to whom the deceased’s interest has
accrued by survivorship. They will have received a benefit
from the effect of
survivorship, and in that sense, they can be described as a recipient.
[604] Compare Property Law Act
2007, s 345(2); and Property (Relationships) Act 1976, s 44(2)(c).
[605] We propose that any
party should be able to join the third-party recipients. The parties would
include the personal representatives
and a third-party recipient who has already
been joined. The court should also be able to join parties on its own
initiative. This
may prevent one party unfairly shouldering the burden when
there are potentially multiple third parties who have received property
against
whom orders could be sought.
[606] Rule v Simpson
[2017] NZHC 2154; A v D [2019] NZHC 992, [2019] NZFLR 105; Murrell v
Hamilton [2014] NZCA 377; Vervoort v Forrest [2016] NZCA 375, [2016]
3 NZLR 807; and Hawke’s Bay Trustee Co Ltd v Judd [2016] NZCA 397.
[607] See Welch v Official
Assignee [1998] NZCA 284; [1998] 2 NZLR 8 (CA) at 12. See also the discussion in McIntosh
v Fisk [2017] NZSC 78, [2017] 1 NZLR 863 at [81] and Allied Concrete v
Meltzer [2015] NZSC 7, [2016] 1 NZLR 141 at [76] regarding the concept of
value under the Property Law Act 2007 and s 296(3) of the Companies Act 1993;
and Te Aka Matua o te Ture
| Law Commission A New Property Law Act (NZLC
R29, 1994) at [319].
[608] A similar approach is
taken under the Succession Act 2006 (NSW).
[609] We recognise that, under
this option, the revised s 44C recommended in the PRA review would grant a
partner remedies in respect
of trusts that would not be available to family
provision or contribution claimants. In the PRA review, we identified the use of
trusts as a particular issue that can frustrate the just division of
relationship property: Te Aka Matua o te Ture | Law Commission
Review of the
Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at [11.15]–[11.17].
[610] See Property
(Relationships) Act 1976, s 42.
[611] The Uniform Succession
Laws project was initiated by the Standing Committee of Attorneys-General in
Australia in 1991. Its brief
was to review the laws in Australian jurisdictions
relating to succession and to recommend model national uniform laws. The
Queensland
Law Reform Commission took responsibility for coordinating the
project: National Committee for Uniform Succession Laws Report to the
Standing Committee of Attorneys General on Family Provision (QLRC MP28,
1997) at i.
[612] See National Committee
for Uniform Succession Laws Report to the Standing Committee of Attorneys
General on Family Provision (QLRC MP28, 1997) at 76–87 and
93–94.
[613] Succession Act 2006
(NSW), pt 3.3.
[614] Victorian Law Reform
Commission Succession Laws (Report, 2013) at [6.183]–[6.186]; South
Australian Law Reform Institute ‘Distinguishing between the Deserving
and the Undeserving’: Family Provision Laws in South Australia (Report
9, 2017) at Recommendation 27 and [8.4.1]; and Tasmania Law Reform Institute
Should Tasmania Introduce Notional Estate Laws? (Final Report No 27,
2019) at Recommendation 1 and [5.9.12].
[615] Succession Law Reform
Act RSO 1990 c S.26, pt V; and Dependants Relief Act RSY 2002 c 56.
[616] Inheritance (Provision
for Family and Dependants) Act 1975 (UK), ss 8–13.
[617] Scottish Law Commission
Report on Succession (Scot Law Com No 215, 2009) at [1.20].
[618] “Use and
occupation orders” is used here to refer to an occupation order, tenancy
order or furniture order. In keeping
with our terms of reference, this chapter
does not consider occupation orders over whenua Māori under Te Ture Whenua
Maori Act
1993 except to the extent relevant to our discussion of tikanga
relevant to use and occupation orders.
[619] Property (Relationships)
Act 1976, s 91(2).
[620] Property (Relationships)
Act 1976, s 28A(1).
[621] Occupation rent can be
payable as compensation for post-separation contributions under s 18B of the
Property (Relationships) Act
1976 (as modified by s 86) or in the form of
interest under the court’s ancillary powers under s 33(4).
[622] See for example E v
G HC Wellington CIV-2005-485-1895, 18 May 2006 at [24]; and Picard v
Martin [2020] NZHC 1206 at [87].
[623] Nicola Peart
“Occupation orders under the PRA” [2011] NZLJ 356 at 356.
Peart’s review of 28 cases decided from 2002 found occupation orders were
granted in 18 of the cases. Orders for a
finite period were made in six cases.
In five cases, the period ranged from four to 22 months. In 10 cases, orders
were made pending
sale or division of relationship property.
[624] Property (Relationships)
Act 1976, s 91(3).
[625] Property (Relationships)
Act 1976, s 28A(1).
[626] Residential Tenancies
Act 1986, s 50A(1). The court has no power under the Property (Relationships)
Act 1976 to extend a tenancy
beyond its terms, which in this context would mean
the terms set by the Residential Tenancies Act 1986.
[627] Note, in a relationship
property division, the “family chattels” are relationship property:
Property (Relationships)
Act 1976, s 8(1)(b). In an intestacy, a surviving
partner is entitled to the deceased’s “personal chattels”:
Administration
Act 1969, s 77.
[628] Property (Relationships)
Act 1976, s 28C(3).
[629] Property (Relationships)
Act 1976, s 28C(6).
[630] Property (Relationships)
Act 1976, s 28C(4).
[631] See for example Re
Patterson HC Nelson M84/92, 19 February 2001.
[632] See for example Re
Torrie HC Christchurch CIV-2005-409-144, 12 October 2005; C v D FC
Kaikohe FAM-2007-027-37, 30 May 2008; and D v M [2012] NZFC 6722.
[633] Te Ture Whenua Maori Act
1993, ss 116 and 328.
[634] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R69 and [12.62]–[12.68].
[635] Specifically where the
home was acquired by a partner before a relationship or as a gift or
inheritance. See Te Aka Matua o te Ture
| Law Commission Review of the
Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at [3.74]–[3.79].
[636] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R94 and [15.97].
[637] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R94 and [15.97]–[15.100].
[638] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[15.100].
[639] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R95 and [15.104]–[15.106].
[640] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R70 and [12.70].
[641] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R41–R43.
[642] As noted above, the
children could apply for further provision from the estate under the Family
Protection Act 1955, but the courts
are more likely to grant a capital award
from the estate rather than use and occupation rights.
[643] United Nations
Convention on the Rights of the Child, 1577 UNTS 3 (opened for signature 20
November 1989, entered into force 2 September 1990), art 3.
[644] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[15.84]–[15.87].
[645] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[12.70].
[646] The definition of family
chattels is discussed further in Chapter 4.
[647] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R69 and
[12.65].
[648] The court’s
jurisdiction to grant occupation orders over homes held on trust when the
deceased’s children are beneficiaries
is very broad. We expect, however,
in most cases, the children would only seek an occupation order when they have
been resident in
the home prior to the deceased’s death. We expect the
court would decline an order when the children had not previously relied
on the
trust for accommodation.
[649] See B v B (2009)
27 FRNZ 622 (HC) at [81].
[650] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[15.106].
[651] If an agreement does not
comply with the procedural safeguards in s 21F, a court may declare the
agreement has effect, wholly or
in part, if it is satisfied that the
non-compliance has not materially prejudiced the interests of any party to the
agreement: Property
(Relationships) Act 1976, s 21H.
[652] In Wood v Wood
[1998] 3 NZLR 234 (HC) at 235, the Court said:
My fear is that these contracting-out agreements are being set aside too
readily. Those who criticise the Matrimonial Property Act
for the readiness with
which it captures property sourced from outside the marriage partnership
(pre-marriage assets, third-party
gifts and inheritances) are invariably met
with the same answer: if people do not like the statutory regime they can
contract out
of it. One gathers that the same legislative approach is about to
be taken with de facto marriage. But if effective contracting out
were as
difficult to achieve as these Family Court decisions suggest, the answer would
be a hollow one. All would be consigned to
the same Procrustean bed whether they
liked it or not.
[653] Harrison v
Harrison [2005] 2 NZLR 349 (CA) at [112].
[654] Gardiner v Boag
[1922] NZGazLawRp 186; [1923] NZLR 739 (SC) at 745–746. But see the recent case Matthews v
Phochai [2020] NZHC 3455, in which the Court, while accepting the
parties’ contracting out agreement was void or voidable insofar as it
purported to
exclude any claim under the Family Protection Act 1955, held that
the agreement was relevant to the assessment of any award, as it
recorded the
parties’ joint intention to be financially independent and leave the
relationship with only the assets they came
in with plus anything more they had
acquired themselves: at [61]–[64].
[655] Hooker v Guardian
Trust & Executors Co of New Zealand [1927] GLR 536 (SC).
[656] Bill Patterson has
argued that, if the issue came before the courts today, they would likely hold
such deeds of family arrangements
are enforceable: see Bill Patterson Law of
Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington,
2021) at 112–113. Note too s 47(3) of the Administration Act 1969, which
provides that claimants
cannot bring an action against an administrator for
distributing an estate when they have advised the administrator in writing or
acknowledged in any document that they consent to the distribution or do not
intend to make any application that would affect the
distribution.
[657] Warrender v
Warrender [2013] NZHC 787, [2013] NZFLR 565 at [19].
[658] Administration Act 1969,
s 81(3)(c).
[659] Wilson v Saunders
[2016] NZHC 1211, (2016) 17 NZCPR 404 at [8]–[9].
[660] Re Newey
(Deceased) [1994] NZHC 2276; [1994] 2 NZLR 590 (HC) at 593; and Lewis v Cotton [2001] 2
NZLR (CA) at [42].
[661] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 262 and 264–265.
[662] Carwyn Jones
“Māori Dispute Resolution: Traditional Conceptual Regulators and
Contemporary Processes” in Morgan
Brigg and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
124.
[663] Te Aka Matua o te Ture |
Law Commission Treaty of Waitangi Claims: Addressing the Post-Settlement
Phase — An Advisory Report for Te Puni Kōkiri, the Office of
Treaty Settlements and the Chief Judge of the Māori Land Court (NZLC
SP13, 2002) at 11.
[664] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R73.
[665] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R74.
[666] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R76.
[667] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R77.
[668] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R78.
[669] Breuer v Wright
[1982] 2 NZLR 77 (CA).
[670] Property (Relationships)
Act 1976, s 21F; and Nicola Peart “Effect of Option A” in Nicola
Peart, Margaret Briggs and
Mark Henaghan (eds) Relationship Property on
Death (Thomson Reuters, Wellington, 2004) 97 at 105–107.
[671] The authors of
Relationship Property on Death have argued that it should: see Nicola
Peart “Effect of Option A” in Nicola Peart, Margaret Briggs and Mark
Henaghan (eds)
Relationship Property on Death (Thomson Reuters,
Wellington, 2004) 97 at 105–107.
[672] See for example
Cleary v Cockroft [2020] NZHC 1452; and McNeish v
McArthur [2019] NZHC 3281, [2020] 2 NZLR 287.
[673] The court’s power
to give effect to non-complying agreements may have particular significance
because, in Chapter 7, we recommend
that the court be empowered to give effect
to informal relationship property settlements between partners who have
separated but
the surviving partner would otherwise be eligible in the deceased
partner’s intestacy.
[674] Property (Relationships)
Act 1976, s 21J(5).
[675] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R78 and
[13.96]–[13.98]. The court could also unwind an agreement if the
deceased’s children chose
to challenge an agreement through anti-avoidance
provisions, meaning there are potentially two routes through which the court
could
set aside or vary an agreement when it infringed on the best interests of
minor or dependent children.
[676] Section 21K of the
Property (Relationships) Act 1976 provides that agreements under ss 21-21B are
deemed to have been made for valuable
consideration. This provision should not
apply in relation to the anti-avoidance provisions in the new Act. Rather
whether a party
to a contracting out agreement has provided valuable
consideration so as to defend an application to recover property should be an
issue to be determined on the facts of each case.
[677] Note, in contrast, s 21I
of the Property (Relationships) Act 1976 which enables partners who are not yet
18 to enter contracting
out and settlement agreements under the Act provided the
Court approves the agreement.
[678] In Chapter 5 regarding
family provision, we recommend that the court should have regard to various
matters when considering a child’s
application for family provision. We
anticipate the existence of an agreement with the deceased regarding the
child’s family
provision claims would be highly relevant to matters the
court should take into account, such as whether the deceased has given
inadequate
or no consideration to the strength and quality of the
claimant’s relationship with the deceased over their lifetime, the
deceased’s
reasons for making their will and whether the will can be seen
to be irrational or capricious.
[679] We also consider that
this presumption should apply equally to a non-complying agreement that a court
has ordered should be given
effect.
[680] Trusts Act 2019, s 144.
[681] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World — Māori Perspectives on Justice
(March 2001) at 83.
[682] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World — Māori Perspectives on Justice
(March 2001) at 89.
[683] Property (Relationships)
Act 1976, s 22(1). Nothing in the PRA applies in respect of whenua Māori:
Property (Relationships)
Act 1976, s 6.
[684] Property (Relationships)
Act 1976, s 38A.
[685] Property (Relationships)
Act 1976, s 39. The automatic right of appeal applies to a Family Court or
District Court decision to make
or refuse to make an order or to dismiss or
otherwise finally determine the proceedings.
[686] Property (Relationships)
Act 1976, s 39B.
[687] Family Protection Act
1955, s 3A(1); and Law Reform (Testamentary Promises) Act 1949, s 5(1). However,
s 106 of TTWMA prevents any
order being made under the TPA or FPA from having
the effect of alienating any beneficial interest in Māori freehold land
outside
of the preferred class of alienees.
[688] Family Protection Act
1955, s 3A(2A); and Law Reform (Testamentary Promises) Act 1949, s 5(2A).
[689] Section 59 of Te Ture
Whenua Maori Act 1993 provides for appeals from a provisional or preliminary
determination of the Māori
Land Court. Further appeal to the Court of
Appeal is permitted under s 58A and direct appeal to the Supreme Court in
exceptional
circumstances is permitted under s 58B. The High Court may state a
case for the Māori Appellate Court where any question of
fact relating to
the interests or rights of Māori in any land or in any personal property
arises in the High Court or any question
of tikanga Māori arises in the
High Court: s 61.
[690] Family Protection Act
1955, s 3A(2); and Law Reform (Testamentary Promises) Act 1949, s 5(2). For the
FPA, proceedings will relate
to the same matter if a non-FPA proceeding might
have the effect of enlarging or decreasing the estate, thus affecting the
viability
of an FPA claim: see Hayes v Family Court [2015] NZCA 470,
(2015) 30 FRNZ 414.
[691] Family Protection Act
1955, s 3A(3); and Law Reform (Testamentary Promises) Act 1949, s 5(3).
[692] Family Protection Act
1955, s 3A(4); and Law Reform (Testamentary Promises) Act 1949, s 5(4).
[693] Family Protection Act
1955, s 15(1); and Law Reform (Testamentary Promises) Act 1949, s 5A(1).
Similarly to the PRA, the right of
appeal is against a decision of the Family
Court or District Court to make or refuse to make an order, dismiss proceedings
or otherwise
finally determine proceedings: Family Protection Act 1955, s
15(1AA); and Law Reform (Testamentary Promises) Act 1949, s 5A(1AA).
[694] Decisions of the High
Court are final unless the appellant obtains leave from the Court of Appeal:
Senior Courts Act 2016, s 60(1).
[695] Administration Act 1969,
s 5.
[696] Administration Act 1969,
ss 5 and 6; and High Court Rules 2016, r 27.35.
[697] Wills Act 2007, ss 14
and 32.
[698] Wills Act 2007, s 9.
[699] Administration Act 1969,
s 77B.
[700] Property (Relationships)
Act 1976, s 61; Family Protection Act 1955, s 4; and Law Reform (Testamentary
Promises) Act 1949, s 3.
[701] Trusts Act 2019, s
133.
[702] Trusts Act 2019, s
95.
[703] Te Ture Whenua Maori Act
1993, s 18.
[704] Te Ture Whenua Maori Act
1993, s 109(1).
[705] Te Ture Whenua Maori Act
1993, s 109(1).
[706] Family Court Act 1980, s
11A.
[707] Family Court Act 1980, s
10(1).
[708] Family Court Act 1980, s
9A.
[709] Although we have heard
from some practitioners that proceedings may be resolved more efficiently and
therefore more economically
in the High Court.
[710] We discuss concerns
about the delays in the Family Court in Chapter 12.
[711] Dunsford v Shanly
[2012] NZHC 257 at [7]–[8], applying E v E [2005] NZFLR 806 (HC)
and Crick v McIlraith HC Dunedin CIV-2004-412-37, 1 June 2004. See also
Smith v Smith HC Whangarei CIV-2003-488-394, 12 March 2004.
[712] L v L [2017] NZHC
2529 at [22].
[713] Crick v McIlraith
HC Dunedin CIV-2004-412-37, 1 June 2004 at [3].
[714] E v E [2005]
NZFLR 806 (HC), relying on s 72 of the District Courts Act 1947, now s 124 of
the District Court Act 2016. See also R v N [2014] NZHC 1295, in which
the Court held it had jurisdiction to hear an appeal from an interlocutory
direction in an FPA proceeding.
[715] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at [17.41].
We also recommended the financial limit on the District Court’s
jurisdiction should not apply.
[716] Te Aka Matua o te Ture |
Law Commission Review of Succession Law: Rights to a person’s property
on death | He arotaki i te āheinga ki ngā rawa a te tangata ka
mate ana (NZLC IP46, 2021) at [15.14]–[15.15].
[717] Te Aka Matua o te Ture |
Law Commission Review of Succession Law: Rights to a person’s property
on death | He arotaki i te āheinga ki ngā rawa a te tangata ka
mate ana (NZLC IP46, 2021) at [15.21]–[15.29].
[718] Although ADLS agreed
with concurrent first instance jurisdiction, it did not consider the Family
Court accessible. ADLS noted that
claims take longer in the Family Court than
the High Court, and estate claims are often prioritised behind the other work
the Family
Court does.
[719] See Rosslyn Noonan,
La-Verne King and Chris Dellabarca Te Korowai Ture ā-Whānau: The
final report of the Independent Panel examining the 2014 family justice
reforms (Tāhū o te Ture | Ministry of Justice, May 2019) at 7. See
also other submissions discussed in Chapter 12 regarding resolving
disputes in
court.
[720] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R119 and
[17.53].
[721] We make recommendations
on the role of the Māori Land Court later in this chapter.
[722] We note the extended
jurisdiction of the Family Court to deal with trust matters under s 141 of the
Trusts Act 2019. However, there
are still other matters that are outside the
scope of this review, such as the jurisdiction of the High Court to validate
wills under
s 14 of the Wills Act 2007 (although we briefly discuss the
validation of wills under s 14 of the Wills Act 2007 in Chapter 16, regarding
other reform matters).
[723] See discussion in Te Aka
Matua o te Ture | Law Commission Review of the Property (Relationships) Act
1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC R143,
2019) at [17.37(e)].
[724] These are the same
factors as in s 38A of the Property (Relationships) Act 1976.
[725] Interlocutory decision
is not defined in the Property (Relationships) Act 1976. Rule 8(1) of the Family
Court Rules 2002 defines
an "interlocutory application" to mean:
... an application in proceedings or intended proceedings for an order or a
direction relating to a matter of procedure or for some
relief ancillary to the
orders or declarations sought in the proceedings or intended proceedings ...
In Waterhouse v Contractors Bonding Ltd [Interlocutory decision]
[2013] NZCA 151, [2013] 3 NZLR 361 at [16], the Court of Appeal held that an
interlocutory decision (of the High Court) is ordinarily understood to be a
decision made in the
course of a proceeding leading to or facilitating the
hearing of the claim and its ultimate disposition following the hearing.
[726] Section 124 of the
District Court Act 2016 does not apply to a decision of a kind in respect of
which another enactment “expressly
confers a right of appeal”.
[727] See Land Transfer Act
2017, ss 141–143; and Property (Relationships) Act 1976, s 42.
[728] See Family Court Rules
2002, r 8(1).
[729] See discussion in Te Aka
Matua o te Ture | Law Commission Review of the Property (Relationships) Act
1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC R143,
2019) at [17.5]–[17.20].
[730] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at [17.42].
Section 141(5) of the Trusts Act 2019 provides:
To avoid doubt, an exercise by the Family Court of jurisdiction under this
section is not subject to financial limits in relation
to the value of any
property or interest.
[731] See Te Aka Matua o te
Ture | Law Commission Review of Succession Law: Rights to a person’s
property on death | He arotaki i te āheinga ki ngā rawa a te
tangata ka mate ana (NZLC IP46, 2021) at [15.13]–[15.20] for a summary
of the jurisdictional history of the Court.
[732] Te Aka Matua o te Ture |
Law Commission Review of Succession Law: Rights to a person’s property
on death | He arotaki i te āheinga ki ngā rawa a te tangata ka
mate ana (NZLC IP46, 2021) at [15.21]–[15.32]. The literature we
reviewed included “The Maori Land Courts: Report of the Royal
Commission
of Inquiry” [1980] IV AJHR H3; Te Aka Matua o te Ture | Law Commission
Delivering Justice for All: A Vision for New Zealand Courts and Tribunals
(NZLC R85, 2004); Te Aka Matua o te Ture | Law Commission Striking the
Balance: Your Opportunity to Have Your Say on the New Zealand Court System
(NZLC PP51, 2002); Te Aka Matua o te Ture | Law Commission Seeking Solutions:
Options for change to the New Zealand Court System (NZLC PP52, 2002); Te Aka
Matua o te Ture | Law Commission Treaty of Waitangi Claims: Addressing the
Post-Settlement Phase — An Advisory Report for Te Puni Kōkiri,
the Office of Treaty Settlements and the Chief Judge of the Māori Land
Court (NZLC SP13, 2002); and Te Kooti Whenua Māori | Māori Land
Court and Tāhū o te Ture | Ministry of Justice He Pou Herenga
Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero: 150 Years of the
Māori Land Court (2015).
[733] See also Te Aka Matua o
te Ture | Law Commission Seeking Solutions: Options for change to the New
Zealand Court System (NZLC PP52, 2002) at 191, which discussed a
“Māori Lands and their Communities Court”.
[734] Te Ture Whenua Maori Act
1993, s 66.
[735] A person must not be
appointed a judge unless the person is suitable, having regard to the
person’s knowledge and experience
of te reo Māori, tikanga Māori
and the Treaty of Waitangi: Te Ture Whenua Maori Act, s 7(2A).
[736] See Māori Land
Court Fees Regulations 2013; Family Courts Fees Regulations 2009; and High Court
Fees Regulations 2013.
[737] Te Ture Whenua Maori Act
1993, pt 3A. Part 3A came into force on 6 February 2021.
[738] See for example
Acting Chief Executive of the Ministry for Culture and Heritage –
Taonga Tūturu found at Kerikeri (2015) 106 Taitokerau MB 210 (106 TTK
210); Chief Executive of the Ministry for Culture and Heritage – Taonga
Tuturu found at Cook’s Cove, Tolaga Bay (2017) 71 Tairawhiti MB 267
(71 TRW 267); and Chief Executive, Ministry for Culture and Heritage –
Tāonga Tūturu found at Plimmerton (2012) 283 Aotea MB 166 (283 AOT
166).
[739] See for example Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019); Helen Winkelmann “Renovating the House of the Law” (keynote
speech to Hui-a-Tau 2019, Te Hūnga Rōia Māori o Aotearoa | The
Māori Law Society Annual Conference, Wellington,
29 August 2019); and Te
Kura Kaiwhakawā | Institute of Judicial Studies Prospectus 2021. We
were also made aware during our consultation of some Family Court and High Court
judges undergoing training in te reo Māori
and tikanga Māori.
[740] Although, the FPA and
TPA require claims that relate only to Māori freehold land to be made
exclusively to the Māori Land
Court, and any appeal from a decision from
that Court must be made to the High Court: Family Protection Act 1955, s 3A; and
Law Reform
(Testamentary Promises) Act 1949, s 5.
[741] See High Court Rules
2016, r 1.2; and Family Court Rules 2002, r 3.
[742] Property (Relationships)
Act 1976, s 90; Family Protection Act 1955, s 9; and Law Reform (Testamentary
Promises) Act 1949, s 6.
Note the TPA does not refer to the grant of
administration being made in Aotearoa New Zealand and it is therefore possible
that time
may commence from the date of a grant first obtained outside of
Aotearoa New Zealand. Patterson submits, however, that because the
TPA is
considered a matter of administration rather than succession, at least in
respect of immovables situated in Aotearoa New Zealand
and probably movables,
time will not commence until a grant is made (or resealed) in Aotearoa New
Zealand: see Bill Patterson Law of Family Protection and Testamentary
Promises (5th ed, LexisNexis, Wellington, 2021) at 315.
[743] Family Protection Act
1955, s 9(2)(a).
[744] See Lilley v Public
Trustee [1981] 1 NZLR 41 (PC) and Sullivan v Brett [1981] 2 NZLR 202
(CA) in respect of final distribution under the TPA. The concept of assent has
evolved as the means by which the personal representative
might indicate that
they do not require particular property in the estate for the purposes of
administration and the estate assets
may pass to the beneficiaries. However, it
is rare in Aotearoa New Zealand for personal representatives to formally give
assent:
Sullivan v Brett [1981] 2 NZLR 202 (CA) at 207. The stricter
approach has been applied by te Kōti Pīra | Court of Appeal to
proceedings under the PRA’s predecessor
the Matrimonial Property Act 1963
(see Re Magson [1983] NZLR 592 (CA)) and it appears likely that the same
approach would be consistently taken to proceedings under the PRA: see Bill
Patterson Law of Family Protection and Testamentary Promises (5th ed,
LexisNexis, Wellington, 2021) at 271; R v D [Relationship property]
[2009] NZFLR 607 (FC); and McConkey v Clarke [2019] NZHC 924, [2019]
NZFLR 170 at [74].
[745] Administrative duties
will include proving the will, burying the deceased, getting in the assets and
paying debts, funeral and testamentary
expenses.
[746] John Caldwell Family
Law Service (NZ) (online looseleaf ed, LexisNexis) at [7.908.01]. Multiple
cases have considered whether final distribution has occurred in respect
of
proceedings under the FPA: see for example Re Hill (dec’d); Hill v
Hill [1998] NZHC 914; [1999] NZFLR 268 (HC) at 275; Re Kahn (decd); Kahn v Kahn [2008] NZHC 314; [2008]
NZFLR 782 (HC) at [18]; Gudgeon v Public Trustee [1960] NZLR 233 (SC);
Fowler v New Zealand Insurance Co Ltd [1962] NZLR 947 (SC); and
Bennett v Percy [2020] NZFC 770.
[747] Property (Relationships)
Act 1976, s 62(1)(b). Different rules apply if the estate is a “small
estate”: s 62(1)(a).
[748] However, the partner can
apply under the FPA for further provision from the estate irrespective of which
option they elect: Property
(Relationships) Act 1976, s 57.
[749] Property (Relationships)
Act 1976, s 62(2). However, the application for extension must be made before
the final distribution of
the estate: s 62(4).
[750] Property (Relationships)
Act 1976, s 68.
[751] Property (Relationships)
Act 1976, s 69(2).
[752] See also s 71(2) of the
Property (Relationships) Act 1976. Distribution is defined in s 46 of the
Administration Act 1969.
[753] Administration Act 1969,
s 47(4).
[754] Administration Act 1969,
s 47(3).
[755] Administration Act 1969,
s 47(2). See s 47(1) for the relevant claims, which include the FPA, TPA and
PRA.
[756] The court may only make
an order if there is nothing in any Act that prevents the distribution from
being disturbed: see for example
s 9(1) of the Family Protection Act 1955; s 6
of the Law Reform (Testamentary Promises) Act 1949; and s 47(2) of the
Administration
Act 1969.
[757] These are set out in s
49(1) of the Administration Act 1969.
[758] Administration Act 1969,
s 49(3). Note that s 49(3)(a) specifies that time period commences from the date
of the grant of administration
in Aotearoa New Zealand.
[759] Compare the provisos in
s 9 of the Family Protection Act 1955; and s 6 of the Law Reform (Testamentary
Promises) Act 1949. See also
Lapwood v Teirney [2012] NZHC 1803 at [10]
and [21].
[760] Administration Act 1969,
s 49(4).
[761] Re Nicoll HC
Tauranga M44/92, 13 August 1993. However, in Hodgkinson v Holmes [2012]
NZHC 2972 at [27], the Court suggested that an application made outside
the six-month period would not be barred if “final distribution”
had
not occurred. This was criticised by Patterson in Bill Patterson Law of
Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington,
2021) at 307.
[762] For example, under s 77
of the Property (Relationships) Act 1976, a court may permit a surviving partner
to take under the will
or on intestacy in addition to their division under
option A provided that the application to do so is made before the final
distribution
of the estate.
[763] See B v T [2015]
NZHC 3174 as an example of a claim brought against personal representatives in
their personal capacity. Note, however, the personal representative
will be
protected from such claims where they have made distributions in accordance with
s 47 of the Administration Act 1969.
[764] Noting that s 2(4) of
the Family Protection Act 1955 goes part way to explaining the definition under
that Act.
[765] See s 47(3) of the
Administration Act 1969.
[766] Provided that the
distribution is made in accordance with any trust, power or authority that is
subsisting: see s 48(2) of the Administration
Act 1969.
[767] For example, in
Victoria, Western Australia, South Australia and the Australian Capital
Territory, claimants have six months from
the grant of administration:
Administration and Probate Act 1958 (Vic), s 99; Family Provision Act 1972 (WA),
s 7(2); Inheritance (Family Provision) Act 1972 (SA), s 8; and Family Provision
Act 1969 (ACT), s 9. In Tasmania, it is only three months, and in Northern
Territory, it is 12 months: Testator’s Family Maintenance Act 1912 (Tas),
s 11; and Family Provision Act 1970 (NT), s 9. In Queensland and New South Wales
the limitation periods commence from the date of death and are nine and 12
months respectively:
Succession Act 1981 (Qld), s 41(8); and Succession Act 2006
(NSW), s 58(2).
[768] See Re Magson
[1983] NZLR 592 (CA) at 598 for matters relevant to the court’s
discretion to grant extensions of time.
[769] This means that there
will continue to be restrictions on following assets distributed prior to final
distribution in some circumstances:
see ss 49–52 of the Administration Act
1969. Sections 71–74 of the Property (Relationships) Act 1976 regarding
distribution
of estates would also continue to apply without the references to
the formal option A and option B election process if the Government
implements
our recommendation to remove this process.
[770] Carmichael v Goddard
[1979] 2 NZLR 586 (SC); and Re Cross [1981] 2 NZLR 673 (HC).
[771] Powell v Public
Trustee [2002] NZCA 276; [2003] 1 NZLR 381 (CA) at [27].
[772] Property (Relationships)
Act 1976, ss 81–82.
[773] Family Court Rules 2002,
r 141; and High Court Rules 2016, rr 8.4–8.5.
[774] Family Court Rules 2002,
r 140; and High Court Rules 2016, r 8.20. See also Moon v Lafferty [2020]
NZHC 1652 at [27].
[775] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[16.121].
[776] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[16.141].
[777] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R110–R111 and [16.142]–[16.146].
[778] See Williams v Aucutt
[2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [71]; and Kirby v Sims HC
Wellington CIV-2010-485-1019, 22 August 2011 at [65].
[779] Family Court Rules 2002,
r 398.
[780] Family Court Rules 2002,
r 48; and High Court Rules 2016, r 18.15(1).
[781] High Court Rules 2016, r
18.15(2)(a). In the first edition of Law of Family Protection and
Testamentary Promises, Bill Patterson explains that this is a historical
anomaly due to TPA claims originally being brought by way of writ: see WM
Patterson
Family Protection and Testamentary Promises in New Zealand
(Butterworths, Wellington, 1985) at 237–238.
[782] John Caldwell Family
Law Service (NZ) (online looseleaf ed, LexisNexis) at [7.913], citing Re
Munro (dec’d) DC Waitakere 760/99, 19 October 2000 at 11; and Re
Darby (dec’d) FC Christchurch FP 1427/98, 8 August 2000 at 16.
[783] See for example
Willis v Fredson [2013] NZFC 4742.
[784] Re Meier (deceased)
[1976] 1 NZLR 257 (SC).
[785] Family Court Rules 2002,
r 158; and High Court Rules 2016, r 9.76.
[786] See Bill Patterson
Law of Family Protection and Testamentary Promises (5th ed, LexisNexis,
Wellington, 2021) at 320.
[787] See Family Court Rules
2002, r 48; and High Court Rules 2016, r 18.15(1).
[788] Te Komiti mō
ngā Tikanga Kooti | The Rules Committee Interim Report from Access to
Civil Justice Judicial Sub-Committee (C 2 of 2021, 15 March 2021) at
[53(c)].
[789] Family Court Rules 2002,
r 382; and High Court Rules 2016, r 4.27. In the Family Court, these orders can
be made without the appointment
of a litigation guardian or next friend for the
minor or incapacitated person, which are governed by rr 90B, 90C, 90D and 90F:
Family
Court Rules 2002, r 382(2). In the High Court, these orders can occur at
the request of a party or intending party, or on the court’s
own
initiative: High Court Rules 2016, r 4.27; and see also rr 4.35 and 18.8.
[790] See for example
Family Court Caseflow Management Practice Note (March 2011) at [9.6].
[791] United Nations
Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (opened for
signature 30 March 2007, entered into
force 3 May 2008), arts 12(3) and
12(5).
[792] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[12.23].
[793] Re Magson [1983]
NZLR 592 (CA) at 599.
[794] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R67–R72.
[795] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R71.
[796] Te Aka Matua o te Ture |
Law Commission is undertaking a review of the law relating to adult
decision-making capacity: Te Aka Matua
o te Ture | Law Commission He Arotake
i te Ture mō ngā Huarahi Whakatau a ngā Pakeke | Review of
Adult Decision-making Capacity Law: Terms of Reference (October 2021).
[797] This is the process for
matters relating to a trust that has beneficiaries who are unascertained or lack
capacity: Trusts Act 2019,
s 144.
[798] See for example
Tāhū o te Ture | Ministry of Justice Regulatory Impact Assessment:
Strengthening the Family Court — First stage initiatives to enhance
child and whānau wellbeing (14 May 2020).
[799] Family Court Rules 2002,
r 207(1); and High Court Rules 2016, r 14.1(1). In exercising its discretion as
to costs, the Family Court
may apply rr 14.2–14.12 of the District Court
Rules 2014 so far as applicable and with all necessary modifications. These
rules
are largely the same as the High Court Rules 2016. Where costs are ordered
by the court, these are allocated according to the civil
scale of costs in schs
4–5 of the District Court Rules 2014 and schs 2–3 of the High Court
Rules 2016.
[800] Keelan v Peach
[Costs] [2003] NZCA 342; [2003] NZFLR 727 (CA) at [7]; and Fry v Fry [2015] NZHC 2716,
[2016] NZFLR 713 at [12].
[801] Fry v Fry [2015]
NZHC 2716, [2016] NZFLR 713 at [17].
[802] Ware v Reid
[2019] NZHC 1706 at [53]; and Keelan v Peach [Costs] [2003] NZCA 342; [2003] NZFLR 727
(CA) at [7].
[803] See for example
Powell v Public Trustee [2002] NZCA 276; [2003] 1 NZLR 381 (CA). See also District Court
Rules 2014, rr 14.6–14.7; and High Court Rules 2016, rr
14.6–14.7.
[804] Fry v Fry [2015]
NZHC 2716, [2016] NZFLR 713 at [17].
[805] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[16.111]. The distinctive characteristics of relationship property proceedings
are discussed in that Report
at [16.70].
[806] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R105–R107 and [16.110]–[16.111].
[807] See Fry v Fry
[2015] NZHC 2716, [2016] NZFLR 713 at [13]; Nicola Peart (ed) Family
Property (online looseleaf ed, Thomson Reuters) at [FP5.02]; and Greg Kelly
“An Inheritance Code for New Zealand” (LLM Dissertation,
Te Herenga
Waka | Victoria University of Wellington, 2010) at 20.
[808] Compare s 40 of the
Property (Relationships) Act 1976.
[809] See also Te Aka Matua o
te Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R105.
[810] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R107.
[811] See the judicial comment
advocating for a separate schedule of costs commensurate with and applicable to
the Family Court in Bond v Alloway [2016] NZFC 1868 at [11]. See also
similar comments made in H v B [2012] NZHC 674 at [17].
[812] Rosslyn Noonan, La-Verne
King and Chris Dellabarca Te Korowai Ture ā-Whānau: The final
report of the Independent Panel examining the 2014 family justice reforms
(Tāhū o te Ture | Ministry of Justice, May 2019) at 7.
[813] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[16.69]–[16.70].
[814] Based on data provided
by email from Tāhū o te Ture | Ministry of Justice to Te Aka Matua o
te Ture | Law Commission (16
September 2016): see discussion in Te Aka Matua o
te Ture | Law Commission Dividing relationship property — time
for change? | Te mātatoha rawa tokorau — Kua eke te
wā? (NZLC IP41, 2017) at [25.24].
[815] The average age of the
TPA and FPA cases disposed of by te Kōti Whānau | Family Court between
2009 and 2019 was 450 days
(64.3 weeks) and 440 days (62.9 weeks) respectively:
email from Tāhū o te Ture | Ministry of Justice to Te Aka Matua o
te
Ture | Law Commission regarding annual court data (13 February 2020).
[816] The Family Court’s
Caseflow Management Practice Note, last updated in 2011, states that FPA,
TPA and PRA cases should be disposed of within 26 weeks of filing: Family
Court Caseflow Management Practice Note (March 2011) at [9.1].
[817] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[16.70]–[16.71].
[818] For a full list of these
recommendations, see Te Aka Matua o te Ture | Law Commission Review of the
Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at R102–R109 and
[16.99]–[16.113]. We discuss several of the recommendations in the section
above on
costs.
[819] In accordance with
recommendation 65 of the final report of the Independent Panel examining the
2014 family justice reforms: see
Rosslyn Noonan, La-Verne King and Chris
Dellabarca Te Korowai Ture ā-Whānau: The final report of the
Independent Panel examining the 2014 family justice reforms (Tāhū
o te Ture | Ministry of Justice, May 2019) at 105.
[820] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R102.
[821] See the submission of Te
Hunga Rōia Māori o Aotearoa that describes the Māori Land Court
as being “more accessible
to Māori in terms of costs, approach and
expedience”, sentiments that were endorsed by Ngā Rangahautira and
Chapman
Tripp in their submissions.
[822] Te Ture Whenua Maori Act
1993, s 66.
[823] Te Ture Whenua Maori Act
1993, s 69.
[824] Te Ture Whenua Maori Act
1993, s 70. See the discussion in Te Aka Matua o te Ture | Law Commission
Delivering Justice for All: A Vision for New Zealand Courts and Tribunals
(NZLC R85, 2004) at 240.
[825] See for example
Puao-Te-Ata-Tu (day break): The Report of the Ministerial Advisory Committee
on a Maori Perspective for the Department of Social Welfare (September
1988); Moana Jackson The Maori and the Criminal Justice System: A New
Perspective | He Whaipaanga Hou (Policy and Research Division,
Department of Justice, Study Series 18, 1987–1988); Turuki! Turuki!
Move Together! Transforming our criminal justice system: The second report of Te
Uepū Hāpai i te Ora | Safe and Effective Justice Advisory
Group (December 2019); Te Aka Matua o te Ture | Law Commission Delivering
Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85,
2004); Te Aka Matua o te Ture | Law Commission Justice: The Experiences of
Māori Women | Te Tikanga o te Ture: Te Mātauranga o ngā
Wāhine Māori e pa ana ki tēnei (NZLC R53, 1999); and Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019).
[826] Rosslyn Noonan, La-Verne
King and Chris Dellabarca Te Korowai Ture ā-Whānau: The final
report of the Independent Panel examining the 2014 family justice reforms
(Tāhū o te Ture | Ministry of Justice, May 2019) at 37.
[827] See discussion in Helen
Winkelmann “Renovating the House of the Law” (keynote speech to
Hui-a-Tau 2019, Te Hūnga
Rōia Māori o Aotearoa | The Māori
Law Society Annual Conference, Wellington, 29 August 2019). This has been
particularly
the case in the criminal justice sphere: Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 275–281. See also the discussion of the Te Ao
Mārama model
for the District Court: Heemi Taumaunu “Norris Ward
McKinnon Annual Lecture 2020: Mai te pō ki te ao mārama | The
transition from night to the enlightened world — Calls for transformative
change and the District Court response” (11
November 2020).
[828] See Te Kura
Kaiwhakawā | Institute of Judicial Studies Prospectus 2021.
[829] Rosslyn Noonan, La-Verne
King and Chris Dellabarca Te Korowai Ture ā-Whānau: The final
report of the Independent Panel examining the 2014 family justice reforms
(Tāhū o te Ture | Ministry of Justice, May 2019) at 29.
[830] This would include
appointing specialist advisors to assist the Family Court on tikanga Māori,
supporting kaupapa Māori
services and whānau-centred approaches and
developing a tikanga-based pilot for the Family Court. Rosslyn Noonan, La-Verne
King
and Chris Dellabarca Te Korowai Ture ā-Whānau: The final
report of the Independent Panel examining the 2014 family justice reforms
(Tāhū o te Ture | Ministry of Justice, May 2019) at 38.
[831] Rosslyn Noonan, La-Verne
King and Chris Dellabarca Te Korowai Ture ā-Whānau: The final
report of the Independent Panel examining the 2014 family justice reforms
(Tāhū o te Ture | Ministry of Justice, May 2019) at 40.
[832] Rosslyn Noonan, La-Verne
King and Chris Dellabarca Te Korowai Ture ā-Whānau: The final
report of the Independent Panel examining the 2014 family justice reforms
(Tāhū o te Ture | Ministry of Justice, May 2019) at 37–39.
[833] High Court Rules 2016, r
9.44; and District Court Rules 2014, r 9.35. See for example Ngāti
Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at
[41].
[834] Ellis v R [2020]
NZSC 89. At the time of publication, the Supreme Court had not delivered its
final judgment in this case.
[835] See subpt 5 of pt 9 of
the High Court Rules 2016 and the inherent jurisdiction of the court:
Ngāti Whātua Ōrākei Trust v Attorney-General [2020]
NZHC 3120 at [36]. Section 99 of the Marine and Coastal Area (Takutai Moana) Act
2011 provides for the High Court to refer a question of tikanga to
a court
expert (pūkenga).
[836] Te Ture Whenua Maori Act
1993, s 61. See also Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733
at [95]; and the discussion in Te Aka Matua o te Ture | Law Commission
Delivering Justice for All: A Vision for New Zealand Courts and Tribunals
(NZLC R85, 2004) at 242–250.
[837] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R83–R85 and [14.59]–[14.62].
[838] Amohia Boulton and
others Te Taniwha I Te Ao Ture-ā-Whānau: Whānau Experience Of
Care And Protection In The Family Court (Te Kōpū Education and
Research, July 2020) at 20.
[839] For example, as
currently provided for in s 27 of the Sentencing Act 2002.
[840] Dame Silvia Cartwright
Address, Auckland, 17 October 2019, published as Helen Winkelmann “What
Right Do We Have? Securing
Judicial Legitimacy in Changing Times” [2020]
NZ L Rev 175 at 183. See also the address given by the Chief Justice on the 40th
anniversary of the establishment of the Family Court, Helen Winkelmann
“Securing the vision of its founders 40 years on” (speech given to
Family Court Judges’ Triennial Conference, 12
May 2021) at 8.
[841] Helen Winkelmann
“What Right Do We Have? Securing Judicial Legitimacy in Changing
Times” [2020] NZ L Rev 175 at 184.
[842] Considerable work is
also being undertaken to establish a bijural, bicultural and bilingual
undergraduate legal education in Aotearoa
New Zealand: see Jacinta Ruru and
others Inspiring National Indigenous Legal Education for Aotearoa New
Zealand’s Bachelor of Laws Degree: Phase One – Strengthening
the
Ability for Māori Law to Become a Firm Foundational Component of a Legal
Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga,
supported by the Michael and Suzanne Borrin Foundation, August 2020).
[843] The Commission made this
recommendation in respect of Family Court Judges in the PRA review: see Te Aka
Matua o te Ture | Law Commission
Review of the Property (Relationships) Act
1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC R143,
2019) at R84 and [14.60].
[844] High Court Rules 2016, r
9.36; and District Court Rules 2014, r 9.27. The court also has the ability to
order an account or inquiry:
High Court Rules 2016, r 16.2 and District Court
Rules 2014, r 16.2.
[845] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R83 and [14.59]; and see R104 and [16.108].
[846] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at [16.109].
[847] Family Court Rules 2002,
r 179(1).
[848] Family Court Rules 2002,
r 179(3)(a).
[849] The Trusts Act 2019
applies to all express trusts governed by New Zealand law, such as trusts
created by wills and statutory trusts
under the intestacy regime: Trusts Act
2019, s 5. It also applies to the duties incidental to the office of
administrator under the
Administration Act 1969: Trusts Act 2019, sch 4 pt
1.
[850] Trusts Act 2019, s
143.
[851] Trusts Act 2019, s
142.
[852] Trusts Act 2019, s
144(2)(a).
[853] Trusts Act 2019, s
144(1)(b).
[854] Trusts Act 2019, s
144(1)(c).
[855] Te Ture Whenua Maori Act
1993, s 98I. The mediation process only applies to matters over which the
Māori Land Court has jurisdiction:
s 98H.
[856] Te Ture Whenua Maori Act
1993, s 98L(1).
[857] Te Ture Whenua Maori Act
1993, s 98L(2).
[858] Te Ture Whenua Maori Act
1993, s 98O(3).
[859] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R96–R99 and [16.7]–[16.32].
[860] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R100.
[861] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 262; and Hirini Moko Mead Tikanga Māori: Living
by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 35.
[862] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 262 and 264–265.
[863] Carwyn Jones
“Māori Dispute Resolution: Traditional Conceptual Regulators and
Contemporary Processes” in Morgan
Brigg and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
124.
[864] Te Aka Matua o te Ture |
Law Commission Treaty of Waitangi Claims: Addressing the Post-Settlement
Phase – An Advisory Report for Te Puni Kōkiri, the Office of
Treaty
Settlements and the Chief Judge of the Māori Land Court (NZLC SP13,
2002) at 11.
[865] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 264.
[866] Traditionally, the
practices of muru (taking of personal property as compensation) and marriage
alliances were also used: see Tāhū
o te Ture | Ministry of Justice
He Hīnātore ki te Ao Māori: A Glimpse into the Māori
World – Māori Perspectives on Justice (March 2001) at
75–79, 83, 86 and 200. Withdrawal from disputed territory was another
practice: see Khylee Quince “Māori
Disputes and Their
Resolution” in Peter Spiller (ed) Dispute Resolution in New Zealand
(2nd ed, Oxford University Press, South Melbourne, 2007) 256 at 265.
[867] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World – Māori Perspectives on Justice (March
2001) at 83.
[868] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World – Māori Perspectives on Justice (March
2001) at 89.
[869] For example, parties
that agree to submit future disputes to arbitration are bound to arbitrate those
disputes by the provisions
of the Arbitration Act 1996.
[870] See for example Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 265–268; Tāhū o te Ture | Ministry
of Justice He Hīnātore ki te Ao Māori: A Glimpse into the
Māori World – Māori Perspectives on Justice (March 2001) at
89–92; Te Ahukaramū Charles Royal (ed) The Woven Universe:
Selected Writings of Rev Māori Marsden (Estate of Rev Māori
Marsden, Masterton, 2003) at 35; and Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal
He Whakaputanga me te Tiriti | The
Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki
Inquiry (Wai 1040, 2014) at 30–32.
[871] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 265–268.
[872] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 270.
[873] Tāhū o te Ture
| Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse
into the Māori World – Māori Perspectives on Justice (March
2001) at 83 and 89–91.
[874] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 269.
[875] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 271.
[876] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 271.
[877] Carwyn Jones
“Māori Dispute Resolution: Traditional Conceptual Regulators and
Contemporary Processes” in Morgan
Brigg and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
124.
[878] Carwyn Jones
“Māori Dispute Resolution: Traditional Conceptual Regulators and
Contemporary Processes” in Morgan
Brigg and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
125.
[879] See Harry Dansey
“A View of Death” in Michael King (ed) Te Ao Hurihuri: Aspects of
Maoritanga (Reed Publishing, Auckland, 1992) 105 at 109; and Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 90. This Report uses case studies to demonstrate various tikanga
and kawa around dispute resolution. In one example,
the whānau of two kuia
who were having a minor dispute came to the marae to be involved in the process.
In this way, they supported
their whanaunga but also ensured their own mana was
protected as it was affected by the mana of the individual.
[880] Carwyn Jones
“Māori Dispute Resolution: Traditional Conceptual Regulators and
Contemporary Processes” in Morgan
Brigg and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at 127,
where Jones emphasises that the present and future generations are
seen as
living faces of the ancestors.
[881] Carwyn Jones
“Māori Dispute Resolution: Traditional Conceptual Regulators and
Contemporary Processes” in Morgan
Brigg and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at 128.
Jones explains how whanaungatanga includes the interconnectedness
between people
and the environment and that the concepts of utu, tapu/noa and kaitiakitanga are
all closely connected with the natural
world.
[882] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 280–281.
[883] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 292.
[884] See Joan Metge
Kōrero Tahi: Talking Together (Auckland University Press with Te
Mātāhauariki Institute, Auckland, 2001) at 8–10; Khylee Quince
“Māori
Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 269; and Te Aka Matua o te Ture | Law Commission The
Taking into Account of Te Ao Maori in Relation to Reform of the Law of
Succession (NZLC MP6, 1996) at 24.
[885] Joan Metge
Kōrero Tahi: Talking Together (Auckland University Press with Te
Mātāhauariki Institute, Auckland, 2001) at 8, cited in Te Aka Matua o
te Ture | Law
Commission Treaty of Waitangi Claims: Addressing the
Post-Settlement Phase – An Advisory Report for Te Puni Kōkiri, the
Office of
Treaty Settlements and the Chief Judge of the Māori Land
Court (NZLC SP13, 2002) at 11–12.
[886] Khylee Quince
“Māori Disputes and Their Resolution” in Peter Spiller (ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press, South
Melbourne, 2007) 256 at 271–273.
[887] Property (Relationships)
Act 1976, s 21B.
[888] Hooker v Guardian
Trust & Executors Co of New Zealand [1927] GLR 536 (SC).
[889] Bill Patterson has
argued that if the issue came before the courts today, they would likely hold
such deeds of family arrangements
are enforceable: see Bill Patterson Law of
Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington,
2021) at 112–113. Note too s 47(3) of the Administration Act 1969, which
provides that claimants
cannot bring an action against an administrator for
distributing an estate when they have, in writing, consented to the distribution
or acknowledged they do not intend to make an application that would affect the
distribution.
[890] Arbitration Act 1996, s
10(1).
[891] See Robert Fisher
“Relationship property arbitration” (2014) 8 NZFLJ 15 at 16; and
Regan Nathan “Another tool in the kete? — relationship property
arbitration in New Zealand” (2020) 10 NZFLJ 47 at 47–48.
[892] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[16.54]–[16.55].
[893] Section 143 of the
Trusts Act 2019 gives a trustee power to refer matters to an ADR process with
the agreement of each party to
the matter.
[894] We set out our
discussion of the relevant tikanga above.
[895] The dispute resolution
provisions are found in pt 3A of Te Ture Whenua Maori Act 1993 and came into
force on 6 February 2021.
[896] We recommended the
establishment of a Family Court Rules Committee in the PRA review: see Te Aka
Matua o te Ture | Law Commission
Review of the Property (Relationships) Act
1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC R143,
2019) at R102 and [16.56].
[897] NZLS also referred to
its submission in the PRA review, where it supported pre-action procedures
proposed in that context in relation
to matters of disclosure.
[898] Similar statutory
endorsements are found in comparable jurisdictions. See for example s 4 of the
British Columbia Family Law Act
SBC 2011 c 25, which emphasises that
out-of-court dispute resolution is preferred, including encouraging resolution
through agreements
and appropriate family dispute resolution processes before
making an application to a court; and s 3 of the Ontario Family Law Act
RSO 1990
c F.3, which endorses voluntary mediation as a process for resolving any matter
that the court specifies.
[899] See Te Ture Whenua Maori
Act 1993, s 98H.
[900] See Trusts Act 2019, s
144.
[901] As noted in Chapter 1,
Te Aka Matua o te Ture | Law Commission has commenced its review of the law
relating to adult decision-making
capacity, Ngā Huarahi Whakatau, and we
expect that recommendations from that review will address whether capacity
should be
understood in a more nuanced way than is presently set out in law.
[902] We do not consider
unascertained parties would be able to bring a claim under the new Act. In
Chapter 5 we recommend that the only
unborn children eligible to claim a family
provision award should be unborn children in utero at the time of the
deceased’s
death. Children who may be born in the future, but were not in
utero prior to the deceased’s death, would not be eligible.
[903] Irvine v Public
Trustee [1988] NZCA 161; [1989] 1 NZLR 67 (CA) at 70.
[904] MacKenzie v MacKenzie
(1998) 16 FRNZ 487 (HC) at 495.
[905] Sadler v Public
Trust [2009] NZCA 364, [2009] NZFLR 937 at [39].
[906] B v T [2015] NZHC
3174 at [111].
[907] John Earles and others
Wills and Succession (NZ) (online looseleaf ed, LexisNexis) at [13.11];
and Bill Patterson Law of Family Protection and Testamentary Promises
(5th ed, LexisNexis, Wellington, 2021) at 115.
[908] Bill Patterson Law of
Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington,
2021) at 116.
[909] Bill Patterson Law of
Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington,
2021) at 116, giving Re Barker (1997) 15 FRNZ 618 (HC) as an example.
[910] Bill Atkin and Bill
Patterson Laws of New Zealand Family Protection and other Family Property
Arrangements (online ed) at [52].
[911] See Family Court Rules
2002, rr 380 and 382, regarding applications for representation; High Court
Rules 2016, r 4.27; and discussion
in Bill Patterson Law of Family Protection
and Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at
330–331. Section 4(4) of the Family Protection Act 1955 also provides that
personal
representatives may apply on behalf of any person who is not of
“full age or mental capacity”.
[912] This list is taken from
Stephen McCarthy “Will Challenges — what is the executor to
do?” (paper presented to Trusts
& Estates Conference 2016, Auckland,
18 August 2016) at 10–11. See also Bennett v Percy [2020] NZFC
3223; and John Caldwell Family Law Service (NZ) (online looseleaf ed,
LexisNexis) at [7.909], referring to instances where a personal representative
retains their role while defending
the claim in their capacity as
beneficiary.
[913] Note that partners who
elect option A under s 61 of the Property (Relationships) Act 1976 are
ineligible to apply for letters of
administration in their partner’s
intestacy: High Court Rules 2016, r 27.35. However, a partner electing option A
may still
be appointed an executor. If a surviving partner is the sole personal
representative of the deceased partner’s estate, they
must submit any
agreement settling relationship property matters to the court for approval:
Property (Relationships) Act 1976, s
21B(3).
[914] Public Trust Act 2001, s
76.
[915] Tod v Tod [2015]
NZCA 501, [2017] 2 NZLR 145 at [27], citing Hunter v Hunter [1938] NZLR
520 (CA) at 530–531.
[916] Shane Campbell
“Executors and trustees of estates: an obligation to invite adverse claims
against an estate?” [2018] NZLJ 75 at 76.
[917] See Chapter 5 for
further discussion of “accepted children”.
[918] Note this should take
place alongside a general education campaign as we propose in Chapter 16.
[919] As set out below
regarding notice to the deceased’s children, the Status of Children Act
1969 states what actions are deemed
to constitute reasonable inquiries for the
purposes of determining whether eligible persons exist who may claim an interest
in a
trust or estate by reason of the Act. These steps may provide a good
reference for personal representatives when inquiring into whether
the deceased
was in a relationship.
[920] See Trustee Companies
Act 1967, s 36(1); and Public Trust Act 2001, s 93.
[921] See s 65 of the
Administration Act 1969, which provides that certain entities, such as
superannuation funds, banks, or the employer
of the deceased, can pay money to
certain relatives of the deceased, such as a surviving partner, without
administration of the estate
needing to be obtained. The amount of money must
not exceed the prescribed amount, which is currently set at $15,000. In Chapter
16 we recommend that the Government should consider raising the monetary
threshold for administering an estate without a grant of
administration.
[922] Currently provided for
in s 11A of the Family Protection Act 1955. The Commission recommended a similar
duty in Te Aka Matua o te
Ture | Law Commission Succession Law: A Succession
(Adjustment) Act – Modernising the law on sharing property on death
(NZLC R39, 1997) at 152.
[923] Depending on how the law
may be reformed to deal with property that may have passed from the deceased
without falling into the estate,
such as jointly owned property passing by
survivorship, personal representatives may need to place further information
before the
court. We discuss options to address property passing outside the
estate in Chapter 8.
[924] We note our suggestion
in Chapter 2 that there is merit in consolidating the different legislation
regarding administration and
succession into a single statute. If that were
done, it would be unnecessary to duplicate provisions like the power to remove
and
replace personal representatives across the statute book.
[925] Paul Spoonley The New
New Zealand: Facing demographic disruption (Massey University Press, 2020)
at 119. We note that events such as the COVID-19 pandemic may encourage more New
Zealanders to return
from overseas and fewer to leave.
[926] Aotearoa New
Zealand’s annual net migration rate was 11.4 per 1,000 people in the year
ended June 2019 (similar to 2017 and
2018). The rate is similar to
Australia’s in 2017–2018 but more than triple that in the United
Kingdom: Tatauranga Aotearoa
| Stats NZ “New Zealand net migration rate
remains high” (12 November 2019) <www.stats.govt.nz>.
[927] Administration is
concerned with the appointment of a personal representative, the collection of
the assets of the estate and the
payment of the estate’s debts.
[928] Re Greenfield
[1984] NZHC 230; [1985] 2 NZLR 662 (HC) at 666. However, it is perhaps questionable whether
Parliament intended for this to be the case given its inclusion of s 3(5) of
the
Law Reform (Testamentary Promises) Act 1949, which contemplates the ability to
extend directly or indirectly to property outside
Aotearoa New Zealand and is
equivalent to s 7(1) of the Family Protection Act 1955.
[929] See the discussion on
forced heirship in Chapter 5.
[930] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at ch 19.
[931] Our review noted other
issues with s 7A of the Act. An implicit choice of law is insufficient to
satisfy the technical requirements
in s 7A(2): see Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[19.45]–[19.50].
[932] If such an election is
made, it would cover all property except for overseas immovable property.
[933] For the full discussion
of these issues, see Te Aka Matua o te Ture | Law Commission Review of the
Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at [19.45]–[19.50].
[934] For the full discussion
of the recommendations, see Te Aka Matua o te Ture | Law Commission Review of
the Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at ch 19.
[935] Maria Hook and Jack Wass
The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at
[8.91] and [8.128]; Australian Law Reform Commission Choice of Law (ALRC
Report 58, 1992) at [9.4]–[9.6]; and Paul Torremans (ed) Cheshire,
North & Fawcett Private International Law (15th ed, Oxford University
Press, Oxford, 2017) at 1352, discussing the reluctance of the judge in the
English case of Re Collens, decd [1986] Ch 505 to see the widow
succeed in both jurisdictions.
[936] A statutory legacy is a
prescribed amount of money that a partner is sometimes entitled to in an
intestacy. In Aotearoa New Zealand,
the prescribed amount is currently set at
$155,000 and is available to a deceased’s partner when the deceased was
survived
by a partner and one or more descendants, or a partner and one or more
parents. We discuss this in detail in Chapter 7.
[937] Although there is no New
Zealand case law dealing with this issue, it has occurred in England and Canada
with varying results: see
for example Re Collens, decd [1986] Ch 505;
Re Thom (1987) 50 Man R (2d) 187; and Manitoba (Public Trustee) v
Dukelow (1994) 20 OR (3d) 378.
[938] Section 7(1) of the
Family Protection Act 1955 provides that in cases where the authority of the
court does not extend or cannot
directly or indirectly be made to extend to the
whole estate, then to so much thereof as is subject to the authority of the
court.
[939] Re Bailey [1985]
2 NZLR 656 (HC) at 658–660; and Moleta v Darlow [2021] NZHC 2016 at
[73]–[76].
[940] Re Butchart
(Deceased) [1931] NZGazLawRp 89; [1932] NZLR 125 (CA).
[941] Re Terry
(Deceased) [1950] NZGazLawRp 113; [1951] NZLR 30 (SC); Re Knowles (Deceased) [1995] 2 NZLR
377 (HC); and Roberts v Public Trustee of Queensland HC Christchurch
M316-97, 13 November 1997.
[942] Australian Law Reform
Commission Choice of Law (ALRC Report 58, 1992) at [9.7].
[943] Re Greenfield
[1984] NZHC 230; [1985] 2 NZLR 662 (HC) at 666.
[944] Re Greenfield
[1984] NZHC 230; [1985] 2 NZLR 662 (HC), for example, involved claims under both the FPA and
the TPA by a son against his mother’s estate. Her estate consisted of
movable property (money in a New Zealand investment fund) and letters of
administration were granted in New Zealand to the New Zealand
Insurance Co Ltd.
The Court found that the mother had died domiciled in Australia. The applicable
law to decide the succession of
this movable property was therefore Australian
law. For this reason, the FPA claim failed. However, the finding that the TPA
was
a matter of administration meant that the court was entitled to make an
order in the testamentary promises action notwithstanding
the Australian
domicile of the deceased: see Maria Hook and Jack Wass The Conflict of Laws
in New Zealand (LexisNexis, Wellington, 2020) at [8.127].
[945] See art 21(1) and
recitals 7 and 23–25 of Regulation 650/2012 on jurisdiction, applicable
law, recognition and enforcement
of decisions and acceptance and enforcement of
authentic instruments in matters of succession and on the creation of a European
Certificate
of Succession [2012] OJ L201/107.
[946] Jeanne-Marie Bonnet is a
law student currently completing her honours dissertation under the supervision
of Dr Maria Hook, focusing
on the most appropriate connecting factor for cases
of cross-border intestacy.
[947] Bonnet cited two Court
of Appeal decisions in support of this: see K v P [2005] NZCA 443; [2005] 3 NZLR 590 (CA);
and Punter v Secretary for Justice [2006] NZCA 533; [2007] 1 NZLR 40. Bonnet also referred
to the UK case A v A (Children: Habitual Residence) [2013] UKSC 60,
[2014] AC 1, in which the test derived from R v Barnet London Borough
Council, ex parte Shah [1983] 2 AC 309 (HL) was abandoned.
[948] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R130–R131.
[949] We address how this
might work in case studies at the end of this chapter.
[950]
MinterEllisonRuddWatts’ endorsement was subject to the comments expressed
above about potential difficulties establishing
habitual residence.
[951] These were the same
requirements recommended in the PRA review: Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R137–R139 and [19.58]–[19.68].
[952] These were NZLS, ADLS,
Public Trust, TGT Legal, Chapman Tripp, MinterEllisonRuddWatts, Morris Legal and
the joint submission of
Dr Maria Hook and Jack Wass.
[953] Renvoi refers to the
forum court’s application of the foreign court’s choice of law
rules. This might exclude the foreign
court’s approach to renvoi (single
or partial renvoi) or include it (double or total renvoi).
[954] See the submissions from
NZLS, ADLS, Public Trust and TGT Legal.
[955] We acknowledge that
challenges will remain when seeking to enforce one jurisdiction’s court
orders in another jurisdiction
and that matters closely related to the
succession of estates, such as administration, would not be included in these
proposals.
We discuss these matters below.
[956] See art 21(1) and
recitals 7 and 23–25 of Regulation 650/2012 on jurisdiction, applicable
law, recognition and enforcement
of decisions and acceptance and enforcement of
authentic instruments in matters of succession and on the creation of a European
Certificate
of Succession [2012] OJ L201/107. Article 21(2) provides an
exception that another law should apply when it is clear from all the
circumstances that the deceased was manifestly more closely connected to another
Member State. This exception clause has been criticised
because it undermines
the desire for habitual residence to be determined using an overall assessment
focusing on the core of the
relationship, so we would not recommend its adoption
in Aotearoa New Zealand: see Alfonso-Luis Calvo Caravaca “Article 21:
General Rule” in Alfonso-Luis Calvo Caravaca, Angelo Davì and
Heinz-Peter Mansel (eds) The EU Succession Regulation: A Commentary
(Cambridge University Press, Cambridge, 2016) 298 at 318.
[957] These and additional
criteria are discussed in Alfonso-Luis Calvo Caravaca “Article 21: General
Rule” in Alfonso-Luis
Calvo Caravaca, Angelo Davì and Heinz-Peter
Mansel (eds) The EU Succession Regulation: A Commentary (Cambridge
University Press, Cambridge, 2016) 298 at 303–304.
[958] Compare s 9(d) of the
Domicile Act 1976.
[959] See the Supreme Court
discussion about ordinary residence in Greenfield v Chief Executive, Ministry
of Social Development [2015] NZSC 139, [2016] 1 NZLR 261 at [36]–[37].
See also Maria Hook and Jack Wass The Conflict of Laws in New Zealand
(LexisNexis, Wellington, 2020) at [4.188].
[960] Alfonso-Luis Calvo
Caravaca “Article 21: General Rule” in Alfonso-Luis Calvo Caravaca,
Angelo Davì and Heinz-Peter
Mansel (eds) The EU Succession Regulation:
A Commentary (Cambridge University Press, Cambridge, 2016) 298 at
305–306.
[961] Compare ss 6 and 7 of
the Domicile Act 1976. See generally Maria Hook and Jack Wass The Conflict of
Laws in New Zealand (LexisNexis, Wellington, 2020) at ch 4, [C.3].
[962] We note that in its
submission, NZLS said that it may be helpful to cross-reference to the habitual
residence jurisprudence from
the child abduction cases where factors such as a
settled intention and linking stability to “an appreciable period of
time”
in the country have been discussed and applied. Conversely,
submitter Jeanne-Marie Bonnet, cautioned against the New Zealand court’s
reliance on those two elements of the legal principles that have developed to
assist in determining habitual residence in child abduction
cases.
[963] In the PRA review, we
used “closest connection” because it needed to reflect the country
most closely connected to the
relationship.
[964] For example, by ordering
a resident New Zealand executor to realise foreign immovable property and
distribute the proceeds under
New Zealand law where Aotearoa New Zealand was the
deceased’s habitual residence.
[965] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R130–R131.
[966] Meaning that they do not
have a regime that provides entitlements to a surviving partner based on
matrimonial/relationship property
rights on inter vivos separation.
[967] As indicated in Dr Maria
Hook and Jack Wass’s submission. That would mean that, if the law of
Germany is identified as the
law applicable to matters of succession to the
deceased’s estate, the court would apply the law as it would be applied to
the
facts by the German court, even if the German court would characterise some
of those rules as concerned with relationship property
rather than
succession.
[968] See Chapter 4, regarding
relationship property entitlements.
[969] This is consistent with
the domestic law about the continuation of relationship property proceedings
following the death of one
or both partners: Property (Relationships) Act 1976,
s 10D.
[970] See recital 12 of
Regulation 650/2012 on jurisdiction, applicable law, recognition and enforcement
of decisions and acceptance and
enforcement of authentic instruments in matters
of succession and on the creation of a European Certificate of Succession [2012]
OJ L201/107.
[971] Gerhard Dannemann
“Adaptation” in Stefan Leible (ed) General Principles of European
Private International Law (Wolters Kluwer, Alphen aan den Rijn
(Netherlands), 2016) 331 at 342.
[972] See the discussion on
the public policy exception in Maria Hook and Jack Wass The Conflict of Laws
in New Zealand (LexisNexis, Wellington, 2020) at [4.88]–[4.106].
[973] New Zealand Basing
Ltd v Brown [2016] NZCA 525, [2017] 2 NZLR 93 at [68].
[974] See Maria Hook and Jack
Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020)
at [4.93]–[4.98], citing Duarte v Black & Decker Corp [2007]
EWHC 2720 (QB), [2008] 1 All ER (Comm) 401 and Rousillon v Rousillon
[1863] EngR 447; (1880) 14 Ch D 351 (Ch D). See also Alex Mills “The Dimensions of
Public Policy in Private International Law” (2008) 4 J Priv Int L 201.
[975] Further consideration
should be given to the most appropriate place for these rules to sit. If the
Government decides to consolidate
multiple statutes relevant to the
administration and succession of both testate and intestate estates into a
single Act, it would
be appropriate for that Act to include the choice of law
rules. Until that time, it may be appropriate for the rules to sit within
the
new Act and other relevant statutes including the Wills Act and the
Administration Act, or to be enacted in a new statute.
[976] A testamentary promise
claim should be treated as a matter of succession not one of administration.
[977] Re Roper (Deceased)
[1927] NZLR 731 (SC) at 743; and Re Butchart (Deceased): Butchart v
Buchart [1931] NZGazLawRp 89; [1932] NZLR 125 (CA). See also Marcus Pawson Laws of New Zealand
Conflict of Laws: Choice of Law (online ed) at [232]; and Maria Hook and
Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington,
2020) at [8.109].
[978] Maria Hook and Jack Wass
The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at
[8.109].
[979] Lawrence Collins (ed)
Dicey, Morris & Collins on the conflict of laws (15th ed,
Sweet & Maxwell, London, 2012) at [27-024]; Paul Torremans (ed)
Cheshire, North & Fawcett Private International Law (15th ed,
Oxford University Press, Oxford, 2017) at 1340; and Martin Davies and others
Nygh’s Conflict of Laws in Australia (10th ed, LexisNexis
Butterworths, Chatswood (NSW), 2020) at [38.9].
[980] To assist the
understanding of the scope of these choice of law rules, the Government could
consider including in statute a broader
list of excluded matters. See for
example art 1 of Regulation 650/2012 on jurisdiction, applicable law,
recognition and enforcement
of decisions and acceptance and enforcement of
authentic instruments in matters of succession and on the creation of a European
Certificate
of Succession [2012] OJ L201/107. See generally House of Lords
European Union Committee The EU’s Regulation on Succession: Report with
Evidence (6th Report of Session 2009–2010, 24 March 2010) at ch 4.
[981] This ensures, for
example, that a will validly executed when the will-maker is habitually resident
in Germany is not rendered invalid
when the will-maker becomes habitually
resident in Aotearoa New Zealand merely because the formalities differ between
the countries.
It is likely impossible for wills to comply with the formalities
of all legal systems at the same time.
[982] See art 27 of Regulation
650/2012 on jurisdiction, applicable law, recognition and enforcement of
decisions and acceptance and enforcement
of authentic instruments in matters of
succession and on the creation of a European Certificate of Succession [2012] OJ
L201/107.
The rules of the lex situs would continue to govern the actual
dealings in relation to property.
[983] In the PRA review, we
preferred the term “foreign law agreements” because of concern that
a narrow interpretation of
the term “choice of law agreement” might
exclude these latter overseas property sharing agreements. However, we
acknowledge
the risk that “foreign” is misinterpreted to mean
“foreign to Aotearoa New Zealand” and have therefore reverted
back
to “choice of law agreement”. The definition in Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at [19.57] should still apply.
[984] See Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at [19.57].
[985] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R137–R138 and [19.58]–[19.61].
[986] Consistent with the
Commission’s R139 in Te Aka Matua o te Ture | Law Commission Review of
the Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019); and see also at
[19.62]–[19.68].
[987] Te Aka Matua o te Ture |
Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[19.68].
[988] Renvoi refers to the
forum court’s application of the foreign court’s choice of law
rules. This might exclude the foreign
court’s approach to renvoi (single
or partial renvoi) or include it (double or total renvoi).
[989] Rina See “Through
the Looking Glass: Renvoi in the New Zealand Context” [2012] AukULawRw 5; (2012) 18
Auckland U L Rev 57 at 57–58. We are not aware of more recent case law
applying renvoi. See also Maria Hook and Jack Wass The Conflict of Laws in
New Zealand (LexisNexis, Wellington, 2020) at [4.52].
[990] Maria Hook and Jack Wass
The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at
[8.54].
[991] For example, where
enforcement might impact the title of immovable property in that country.
[992] See Chapter 12 for
discussion on the respective jurisdictions of te Kōti Whenua Māori |
Family Court, te Kōti Matua
| High Court and te Kōti Whenua Māori
| Māori Land Court.
[993] For example s 7 of the
Property (Relationships) Act 1976 and s 40 of the Draft Succession (Adjustment)
Act in Te Aka Matua o te
Ture | Law Commission Succession Law: A Succession
(Adjustment) Act (NZLC R39, 1997) at 108.
[994] See the court rules
relevant to the service of proceedings under the PRA, FPA or TPA: Family Court
Rules 2002, r 130; District Court
Rules 2014, rr 6.23–6.27; and High Court
Rules 2016, rr 6.27–6.36.
[995] Maria Hook and Jack Wass
The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at
[8.85].
[996] Named after the leading
House of Lords decision British South Africa Co v Companhia de
Moçambique [1893] UKLawRpAC 53; [1893] AC 602 (HL). The rule was treated as applicable in
New Zealand in Re Fletcher Deceased [1920] NZGazLawRp 132; [1921] NZLR 46 (SC).
[997] The leading authority is
Penn v Lord Baltimore [1750] EngR 99; (1750) 1 Ves Sen 444 (Ch). See also Birch v
Birch [2001] NZHC 411; [2001] 3 NZLR 413 (HC) at [50].
[998] See Re Bailey
[1985] 2 NZLR 656 (HC) at 659.
[999] David Goddard and
Campbell McLachlan “Private International Law — litigating in the
trans-Tasman context and beyond”
(paper presented to New Zealand Law
Society seminar, August 2012) at 157. Goddard and McLachlan reference
Hesperides Hotels Ltd v Muftizade [1979] AC 508 (HL) at 543–544. In
that case, Lord Wilberforce described a “massive volume of academic
hostility to the rule as illogical
and productive of injustice”: at 536.
See also Lucasfilm Ltd v Ainsworth [2011] UKSC 39, [2012] 1 AC 208 at
[105].
[1000] Most recently, in
Christie v Foster, the Court stated that the criticisms of the rule
appear to be well founded but that this was not the case to decide whether the
Moçambique rule should be good law in New Zealand (as the case was
considering land in New Zealand, not foreign land): Christie v Foster
[2019] NZCA 623, [2019] NZFLR 365 at [75]. Similar sentiments were expressed by
te Kōti Pīra | Court of Appeal in Schumacher v Summergrove Estates
Ltd [2014] NZCA 412, [2014] 3 NZLR 599.
[1001] See the comments in
Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis,
Wellington, 2020) at [7.74]–[7.77], citing Schumacher v Summergrove
Estates Ltd [2013] NZHC 1387 and Burt v Yiannakis [2015] NZHC 1174,
[2015] NZFLR 739.
[1002] Australian Law Reform
Commission Choice of Law (ALRC Report 58, 1992) at [9.10].
[1003] We have not provided
an example of the likely outcome under the current law as the current law was
discussed in greater detail in
the PRA review: Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at ch
19.
[1004] Succession Act 2006
(NSW), ch 4.
[1005] This would be
Consumer Price Index-adjusted, but for simplicity, we have excluded that
calculation.
[1006] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [154].
[1007] Ian Binnie and others
Entitlements to Deceased People’s Property in Aotearoa New Zealand:
Public Attitudes and Values — A General Population Survey (Te
Whare Wānanga o Ōtākou | University of Otago, research report
supported by the Michael and Suzanne Borrin Foundation,
May 2021) at [155].
[1008] Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R5 and [2.72].
[1009] Pfaender v
Gregory [2018] NZHC 161 at [30]–[32]. These transcriptions were
validated alongside a draft will and contemporaneous notes made by the
deceased’s lawyer.
This is in contrast to the view of the Court in an
earlier case, Re Feron [2012] NZHC 44, [2012] 2 NZLR 551, where it was
held that a will drafted after the deceased’s death based on instructions
provided prior to death could not qualify
as a document under s 14.
[1010] Public Trust noted
that this is possible in New South Wales and Victoria. For example, in Re
Estate of Wai Fun Chan (dec’d) [2015] NSWSC 1107, a video recording
was held to be a document for the purpose of the dispensing power under s 8 of
the Succession Act 2006 (NSW). See also s 9 of the Wills Act 1997 (Vic).
[1011] We note, however,
that, when powers to validate non-compliant wills were introduced in Australia
in 1975 (on which s 14 of the Wills
Act 2007 is based), concerns raised about
this encouraging “sloppy will-making” turned out to be groundless:
see Nicola
Peart and Greg Kelly “The Scope of the Validation Power in the
Wills Act 2007” [2013] NZ L Rev 73 at 73–74.
[1012] Te Aka Matua o te
Ture | Law Commission The Taking into Account of Te Ao Maori in Relation to
Reform of the Law of Succession (NZLC MP6, 1996) at 31.
[1013] Te Aka Matua o te
Ture | Law Commission Māori Custom and Values in New Zealand Law
(NZLC SP9, 2001) at 119–120.
[1014] Norman Smith Maori
Land Law (AH & AW Reed, Wellington, 1960) at 59.
[1015] Te Aka Matua o te
Ture | Law Commission Māori Custom and Values in New Zealand Law
(NZLC SP9, 2001) at 120.
[1016] A review of the
available literature reveals different approaches to ōhākī. In
our preliminary consultation with Māori,
we heard stories about how
ōhākī was practised and understood in different ways within
different whānau.
[1017] Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 54.
[1018] See the example given
by the Hon Dr Pita Sharples concerning the second Māori king, Tāwhiao:
(10 October 2006) 634 NZPD 5565.
[1019] Wills Act 2007, ss 6,
8 and 11. Section 14 of the Act permits validation of wills that do not meet
these formal requirements and,
in one case, the High Court validated a
transcript of an audio recording of a person speaking their will: see
Pfaender v Gregory [2018] NZHC 161 at [30]–[32].
[1020] It has since changed
its name to te Pāti Māori.
[1021] (10 October 2006) 634
NZPD 5565; (8 May 2007) 639 NZPD 9003–9005; and (23 August 2007) 641 NZPD
11458–11460.
[1022] See discussion in
Chapter 2 about incorporating the Wills Act and other succession-related
legislation into a new Inheritance Act.
[1023] This would require
consideration of the appropriate tikanga relating to evidence. We note the
comments from Ngā Rangahautira
that Pākehā practices towards
evidential issues would be inappropriate when ōhākī are
contested.
[1024] See Te Aka Matua o te
Ture | Law Commission Succession Law: Wills Reforms (NZLC MP2, 1996) at
[120]–[121], which informed the Wills Act 2007.
[1025] Te Aka Matua o te
Ture | Law Commission Relationships and Families in Contemporary New Zealand
| He Hononga Tangata, he Hononga Whānau i Aotearoa o
Nāianei (NZLC SP22, 2017) at 17.
[1026] See for example the
recent case Newton v Newton [2020] NZHC 3337. A couple had executed wills
while in a committed de facto relationship. Six years later, the couple married,
not realising the law
revoked their previous wills. Nevertheless, the Court
accepted that, at the time the partners made their wills, they contemplated
the
relationship would endure and would have the status of marriage: at [4].
[1027] Section 19(1) of the
New Zealand Bill of Rights Act 1990 and s 21(1)(b) of the Human Rights Act 1993
together affirm the right to
be free from discrimination on the grounds of
marital status, including being married, in a civil union or in a de facto
relationship.
[1028] See Appendix 1 of the
submission of NZLS. The property law practitioner is not named.
[1029] Morris Legal referred
to agreements under s 21A of the Property (Relationships) Act 1976.
[1030] See the discussion of
qualifying relationships in Chapters 4 and 7.
[1031] Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at [6.9].
[1032] Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at [7.62], citing the discussion in Margaret Briggs "Outside the Square
Relationships" (paper presented to Te Kāhui
Ture o Aotearoa | New Zealand
Law Society PRA Intensive, October 2016) at 135.
[1033] Paul v Mead
[2020] NZHC 666, (2020) 32 FRNZ 513. See also Chapter 4; and Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R33–R34 and [7.55]–[7.61].
[1034] Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019)
at R35 and [7.75]–[7.77].
[1035] Paul v Mead
[2020] NZHC 666, (2020) 32 FRNZ 513.
[1036] Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976 |
Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[7.66] and [7.77].
[1037] Administration
(Prescribed Amounts) Regulations 2009, reg 4.
[1038] Trustee companies
include Trustees Executors Ltd, AMP Perpetual Trustee Company NZ Ltd, PGG Trust
Ltd, New Zealand Permanent Trustees
Ltd and The New Zealand Guardian Trust
Company Ltd: Trustee Companies Act 1967, s 2 definition of “trustee
company”.
[1039] Trustee Companies Act
1967, s 36(1).
[1040] Public Trust Act
2001, s 93.
[1041] Kiwi Wealth also
submitted that s 65 of the Administration Act 1969 would benefit from a rewrite
to make it less dense and easier
to follow.
[1042] (25 October 1950) 292
NZPD 3726–3727.
[1043] (25 October 1950) 292
NZPD 3726–3727.
[1044] A potential issue may
concern eligibility for residential care home subsidies, but they are governed
by the Residential Care and
Disability Support Services Act 2018 rather than the
Social Security Act 2018.
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